Haryana

StateCommission

A/332/2018

ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

BHANU PRAKASH - Opp.Party(s)

VINOD CHAUDHARY

28 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

  Date of Instituion:19.03.2018

                Date of final hearing:28.10.2022

                                                 Date of pronouncement:27.01.2023

 

                                      APPEAL No.332 of 2018

 

IN THE MATTER OF:

 

Oriental Insurance Company 4 B.P. Neelam Bata Road Faridabad, now through its Regional Manager, Sector-17, Chandigarh.  

 

                                                                                       .….Appellant

Through Mr. Vinod Chaudhary, Advocate

 

 

Versus

 

 

1.      Bhanu Prakash son of Sh. Prakash Chand R/o H.No. A-356, Phase-II, Gautampuri Badarpur, New Delhi.   

…..Respondent

Through Mr. Vikas Lochab, Advocate

2.      M/s Park Mediclaim TPA Pvt. Ltd. 702, Vikram Tower, Rajenderra Place New Delhi through its Authorized Signatory/Principal Office.                   ….Proforma Respondent

 

CORAM:    Mr. S.P. Sood, Judicial Member.  

                   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Vinod Chaudhary, Advocate for the appellant.

                   Mr. Vikas Lochab, Advocate for the respondent No.1.

                   Service of respondent No.2 already dispensed with vide order dated 07.04.2022.

                  

O R D E R

S.P. Sood, Judical Member:

 

                    Delay of 25 days is condoned.

2.                The brief facts of the present case are that the complainant obtained mediclaim policy covering himself and his family members from OP No.1. During subsistence of the policy, his son namely Master Kapish Bansal sustained electrocution and had to be hospitalized. The opposite parties were immediately informed in this regard. After treatment said Kapish was discharged from the hospital with an advice to take physiotherapy sessions. The entire expenses of said indoor treatment was borne by Government of NCT, Delhi. The complainant’s son took physiotherapy sessions from 26.05.2014 to 24.07.2014 from Dr. Rohit Gupta and spent an amount of Rs.1,20,000/- and also spent Rs.26,160/- on medicines but the opposite parties only sanctioned an amount of Rs.12,500/- instead of Rs.1,46,160/-. The complainant submitted all the relevant documents with the opposite parties and requested to release his claim amount but opposite parties did not heed to his request. Hence, there was deficiency in service on the part of opposite parties, hence the complaint.

3.                Upon notice of the complaint, opposite party No.1 appeared through counsel and filed his written statement whereas opposite party No.2 was proceeded against ex-parte vide order dated 30.03.2016. In its written version, opposite party No.1 raised objections regarding cause of action, complainant having suppressed the material facts etc. and requested to dismiss the complaint. On merits it was submitted that the complainant was insured under the said policy for sum insured of Rs.5,00,000/-. As per the conditions No.4.23 of the policy, there was compulsory co-payment of 10% of admissible amount in each and every claim. It was further submitted that said Kapish sustained electrocution on 15.11.2013 and claim for his hospitalization was settled. It was also submitted that said Kapish was admitted on 23.05.2014 for trial of decanulation of tracheotomy which was done on 24.05.2014 and was therefore discharged on 25.05.2014 in stable condition. The complainant filed claim for an amount of Rs.1,48,066/- out of which Rs.1,20,000/- were shown to have been spent towards physiotherapy and rest were for various medicines etc. The claim form was got processed by opposite party No.2 and it was observed that a claim bearing No.OICDR2/8921 for hospitalization of said Kapish with history of electric chock was settled whereas the other claim No.OICDR212157 had been raised for admission in said hospital from 23.05.2014 to 25.05.2014 with diagnosis HIE electrocution for tracheotomy decanulation. The present hospitalization took place more than 5 months after discharge from previous hospitalization. It was further submitted that physiotherapy was done not as a sequel of current hospitalization but on account of hypoxic brain damage contracted by the patient after being electrocuted. As per discharge summary the advice of physiotherapy to continue was not a new advice. . Thus, there was no deficiency in service on their part and requested for dismissal of the complaint.  

4.                The District Commission, Faridabad after taking into consideration entire material available on record allowed the complainant vide order dated 04.01.2018, whereby it held as under:

                   “Opposite party No.1 is directed to pay an amount of Rs.1,31,544/- alongwith interest @9% p.a. from the date of filing of present complaint till its realization and Rs.2100/- as compensation towards mental tension, agony as well as harassment besides Rs.2100/- towards litigation expenses to the complainant within 30 (thirty) days from the date of receipt of this order”

 

5.                Feeling aggrieved by the order of learned District Commission, Faridabad, opposite party No.1-appellant has preferred this appeal before the State Commission.

6.               The arguments have been advanced by Mr. Vikas Chaudhary, Advocate for the appellant and Mr. Vikas Lochab, Advocate for the respondents. With their kind assistance entire appeal record has been properly perused and the other record of district commission also examined.

7.                It is not disputed that the complainant’s son Master Kapish remained admitted in hospital from 23.05.2014 to 25.05.2014 and he took physiotherapy sittings from Dr. Rohit Gupta from 26.05.2014 to 24.07.2014 and spent an amount of Rs.1,20,000/- as fee being paid to said doctor and also spent Rs.26,160/- on medicines and the opposite parties sanctioned only an amount of Rs.12,495/- instead of Rs.1,46,160/-. It is evident from the letter dated 08.07.2014 (Ex.P10) that the opposite parties had demanded from the complainant the dates of two receipts issued for Rs.60,000/- each and a certificate from Dr. Rohit Gupta providing the date wise breakup of Rs.1,20,000/- for physiotherapy charges. If the complainant would not have been entitled for the claim on the ground of physiotherapy being not a new advice as well as not a sequel of current hospitalization then said documents should have not been demanded from the complainant. This demand ipso facto proves that the complainant was entitled to receive the claimed amount from the opposite parties subject to submission of said documents. The complainant has placed on record photocopies of two receipt Nos.63 & 64 (Ex.P6 & Ex.P7) of Rs.60,000/- each as physiotherapy charges for the period from 26.05.2014 to 24.06.2014 and 25.06.2014 to 24.07.2014 as well as photocopy of break up bill Ex.P8. Perusal of the file shows that the patient Kapish Bansal admitted in Apolo Hospital, Delhi dated 23.05.2014 and his IPD treatment in EWS category which was given free facilities to the insured and all the payments was done by the Delhi Government. It is a matter of common experience, insurance companies often repudiate claims on ground of ‘non-disclosure of material information’ by the consumer. However, they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell.

          The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclousure on the part of the insurer.

          Here are two cases where the Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers.

          In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop loacated in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policyholder made a claim, the insurer repudiated it on the basis of the exclusion clause!

          While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said.

          Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”.

          Said the court: “Before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included thereunder”.

As such, the complainant was entitled for the claim amount as per condition No.4.23 of the policy in question. Therefore, refusal by the opposite parties amounts to deficiency in service by sanction only amount of Rs.12,495/- instead of claim amount of Rs.1,46,160/-.  Hence, deficiency in service on the part of OPs is clearly proved.

8.                The learned District Commission has rightly allowed the complaint of the complainant against opposite party No.1. The State Commission finds no reason or ground to interfere with the order of learned District Commission. Hence, the appeal being devoid of merits, stands dismissed.

9.                Application(s) pending, if any, stand disposed of in terms of the aforesaid Order.

10.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Order be uploaded forthwith on the website of the commission for the perusal of the parties.

11.              Statutory amount of Rs.25,000/- deposited at the time of filing of present appeal be released in favour of the complainant/respondent against proper receipt and identification after expiry of the period of filing appeal/revision, if any.

12.              File be consigned to record room along with a copy of this order.              

 

 

Pronounced on: 27^th January, 2023

 

 

 

                                                                                                            S.P.Sood

                                                                                                            Judicial Member                                                                                                                 Addl. Bench            

 

 

 

S.C Kaushik,

Member        

Addl. Bench

 

 

Pvt.Secy.