BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION .
KAMRUP
C.C.No.117/2014
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Sri Nirmal Pradhan -Complainant
S/O Sri Dili Bahadur Pradhan
resident of G.S.Road, Jorabat,
Pin -781023
District Kamrup,Assam
-vs-
I) Bajaj Allianz General Insurance Co.Ltd. - Opposite parties
Represented by its General Manager,
Airport Road, Yerwade, Pune-411006.
2) Branch Manager,
Bajaj Allianz General Insurance Co.Ltd.
2nd Floor, Centre Point,
G.S.Rad, Ulubari (opp.Bora Service Station),
Guwahati-781007, Kamrup(M), Assam
Appearance
Learned advocate Mr.S.Saikia for the complainant .
Learned advocate Mr.Amarjyoti Kakoti for the opp.party
Date of filing written argument:- 12.3.2019, 26.8.2019
Date of oral argument:- 19.11.2020, 25.11.2020
Date of judgment: - 12.01.2021
JUDGMENT
1) This is a complaint filed by one Sri Nirmal Pradhan against (1) Bajaj allianz General Insurance Company Ltd. and (2) Branch Manager, Bajaj allianz General Insurance Company Ltd. The allegation of the complainant is for deficiency of service on the part of the opp.parties for denial of the cash less facility by them on the reason that the pre-authorization request states that surgical expenses incurred on treatment of the ailment in question are not covered in the 1st four years of the policy.
2) The brief fact of the complainant case is that the opp.parties are companies and doing business of insurance within the territory of India. The complainant states that in the year 2010 one insurance agent namely Sri Pallab Bagaria of the opp.parties approached him for taking cashless mediclaim policy under them. The cashless claims facility is the facility available in the network of tied up hospital when the company settle claims directly with the hospital /nursing home . The complainant purchased the said policy as well as renewed upto the year 2013, i.e. the Family Floater Health Guard policy. It was renewed on 13.8.2013 under receipt No. 2905-00189099 after payment of Rs.9680/- in cash to the opp.parties . The opp.parties after receiving of the amount issued the insurance policy and policy was valid upto 12.8.2014. In the aforesaid policy it was also mentioned that the policy covers the persons namely a) Nirmal Pradhan, b)Sarada Devi Pradhan c) Bhavna Pradhan and d) Bhargab Pradhan. The policy covers the Hospitalization expenses.
3) It is alleged by the complainant in his complaint that at the time of purchase of the policy the opp.parties never intimated him about the terms and condition of the policy in detail. He was provided only one page of the policy copy and the money receipt for his payment. He was not given the copy of the terms and conditions of the opp.parties and it is a gross deficiency in service for which complainant pray for an order for cost of medical expenses along with compensation under section 12 of the consumer protection act,1986.
4) The complainant stated that on 3.12.2013 in the morning complainant’s wife Smti Sarada Devi Pradhan accidently slipped from the Varanda of the house. The patient was hospitalized at the Down Town Hospital Ltd. Dispur, Guwahati. The patient required early operation and immediately the complainant informed the hospital for availing cash less facility. But on 6.12.2013 the opp.parties informed the hospital authority regarding their inability to issue authorization for cash less facility on the reason that the pre authorization request states that the surgical expenses of the ailment are not covered in the 1st four years of the policy, Hence the cashless payment to the hospital was denied by the opp.party .
5) The complainant alleges that the opp.parties violated the terms and conditions of the agreement dated 13.8.2013 and it is a deficiency in service and the complainant is entitled for getting the payment of hospital bill Rs.63,490/- and another amount of Rs.50,000/- from the opp.parties for loss caused to him due harassment and mental agony .
6) The opp.party No.1 & 2 Bajaj Alliance Insurance Co.Ltd. stated in their written statement that the petition is not maintainable as there is no cause of action as alleged by the complainant as the claim of the complainant is neither rejected nor repudiated. It is submitted by the opp.party that cashless facility is not the denial of claim and same is specifically mentioned on the denial letter that after denial of the cashless facility, complainant could have approached the opp.parties with all requisite documents for processing the claim and if the claim is admissible as per terms and conditions of the policy, the same can be admitted. Opp.party submitted that complainant has approached this Hon’ble Forum and the Hon’ble Forum has no jurisdiction to try the present case and to pass a judgment and award as prayed for by the complainant.
7) The opp.party stated that as per exclusion part incorporated in the policy of insurance the cashless facility cannot be extended to the policy holder for medical expenses incurred during the first four years of Health Guard Family Floater.
8) Both the parties have agreed that complainant had taken the Health Guard Family Floater Policy on 13.8.2013 for his family members. Opposite party witness (OPW) Sri Ranjan Jyoti Borah stated in his evidence as per the clause 3 of Exclusion Part incorporated in the policy of insurance of cashless facility cannot be extended to the policy holder for any medical expenses incurred during first four years of the issuance of health Guard Family Floater. We have found in the evidence of the complainant as well as the wife of the complainant that at the time of purchase of the policy the opp.parties never intimated them about the above condition . They provided only one page of the policy copy and the money receipt
9) We have not found any evidence from the opp.party side to show that they have furnished all the terms and conditions of the policy i.e. exclusion clause to the complainant at the time of signing the policy.
10) We have perused the documents exhibited in the evidence of the parties. Health card for four numbers of persons were issued by the opp.parties in the names of Pradhan Nirmal, Sarda Devi Pradhan, Bhavna Pradhan, Bhargab Pradhan . Health and wellness card was issued in the name of Sarda Devi Pradhan which was valid upto 12 August-2014 which indicates the eligibility as Cashless and reimbursement. We have taken notices of Ex.4 placed by C.W.1 on record.
11) We have gone through the exhibit 5 i.e. the bill of the concerned hospital in the name of the Mrs.Sarada Devi Pradhan amounting to Rs. 53,490/-
12) Now, the question arises as to whether the denial of the cashless facility by the opp.parties was justified or not. We have gone through the policy Exhibit- 3 which provides hospitalization expenses and the sum insured was Rs.2,00,000/- covering 4 no.s of persons (self + spouse + 2 children) The aforesaid undertaking on behalf of the opp.parties makes it clear that the insured would get hospitalization expenses. However, when the hospital authority on the basis of information given by the complainant communicated with the opp.party No. 2 to take consent regarding cashless facility, the opp.party on 6.12.2013 informed the hospital authority regarding their inability for cashless facility as surgical expanses for the ailment in question are not covered in the 1st four years of the policy and the cashless stands denied under exclusion clause-3.
13) O.P.W. Sri Ranjan Jyoti Borah in his evidence on affidavit states that the denial of cashless facility was misconstrued to be total denial of claim of the complainant . The complainant did not file claim form for reimbursement of the medical expenses, giving no opportunity to render service to the complainant. Opposite Parties in their written statement also submitted that denial of cashless facility is not the denial of the claim.
14) However, when the treatment is under taken by the insured the insurance company takes a somersault and taken up the terms and conditions of the policy which admittedly were not supplied to the insured at the time of inception of the policy. The insured feels cheated at the hands of insurance company . The insurance policy also states that the insurance under this policy is subject to condition, clauses etc. The insured seldom gets the terms and conditions at the time of inception of the policy. But the Insurance companies in order to evade its liability, press into service its terms and conditions when the claim is filed.
15) In the instant case, the insurance company has miserably failed to establish as to by which mode ever supplied the terms and conditions to the insured. The law is now well settled which lays down that the insurance company cannot take shelter under the umbrella of terms and conditions unless the same were duly furnished to the insured . It is mere an excuse to escape liability and is not bonafide intention of the insurance company. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusion/conditions to repudiate the claim or limit the liability the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice. The benefit of such clause, as exclusion clause, would go the insured unless the same is explained in clear terms by the insurer.
16) Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced.
17) Keeping in view of the aforesaid discussion stated above we are of the considered view that the denial of claim of the insured by the opp.parties were wholly unwarranted and devoid of any merit and there is no specific denial of reimbursement of medical expenses by the opp.party.
18) We have gone through the photo copy of the denial letter of the opp.parties available in the record as document No. 1 which was addressed to the hospital authority by the opp.party. In the above letter it is not categorically mentioned that the complainant is not entitled for reimbursement of medical expenses, but it was informed that the cash-less benefit is not available for the first four year of the policy and hence prayer for cash-less facility confirmation by the hospital authority was rejected.
19) We are of the considered view that the policy condition is no way barred the opp.parties to reimburse the amount for the treatment incurred by the policy holder for an amount of Rs.53,490/- which was not contradicted by the opp.parties in their evidence and Ex. 5 is the bill for hospital expenses of the insured. Hence without any deduction the aforesaid bill is required to be reimbursed by the opp.parties along with an interest @ 6% per annum from the date of filing the complaint till payment.
20) We are also of the view that without prior information and instruction to the complainant the refusal of cash-less benefit at the time of difficulty when patient is in hospital is a negligent act on the part of the opp.parties . Hence, the complainant is entitled for getting the bill amount of Rs.53,490/-. Complainant is further entitled for a compensation amounting to Rs.20,000/- for mental agony and harassment along with a cost of the proceeding amounting to Rs. 10,000/- . The decretal amount need to be paid by the opp.parties within 45 days from the date of judgment failing which the opp.parties will have to pay an interest @ 12% per annum at the entire decretal amount till realisation.
Given under our hand and seal of the District Commission, Kamrup, this the 12th day of January, 2021.
Smt A.D.Lahkar Md J.Islam Shri AFA Bora
Member Member President
DCDRC Kamrup DCDRC Kamrup DCDRC Kamrup
