Complaint No: 418 of 2017.
Date of Institution: 17.08.2017.
Date of order:20.10.2023.
Rakesh Kumar Mahajan (now decreased) through his legal heirs as under:-
1. Varun Mahajan Son
2. Kunal Mahajan Son
3. Rita Mahajan Widow
4. Pushpa Rani Mother
All residents of House No. 23/377, Diamond Avenue, Batala and District Gurdaspur.
.....Complainants.
VERSUS
1. Branch Manager, United India Insurance Company Ltd., SCF 174, Jalandhar Road, Batala, District Gurdaspur.
2. Chairman, M.D or Authorized Signatory of Vipul Medcorp TPA, Pvt. Ltd., 515 Udyog Vihar, Phase-V, Gurgaon, Harayana
….Opposite parties.
Complaint under section 12 of the Consumer Protection Act, 1986.
Present: For the complainants: Sh.Baldev Raj, Advocate.
For the opposite party No.1: Sh.Sandeep Ohri, Advocate.
Opposite Party No.2: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Rakesh Kumar Mahajan, Complainant (now decreased) (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against United India Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant was insured alongwith his wife Rita Mahajan under the individual health policy bearing policy No.2002022816P101396875 effective from 25.4.2016 to 24.4.2017 under the gold policy. It is further pleaded that the complainant remained insured with the opposite party No. 1 from 25.4.2011 continuously and without any interruption and his previous policy No.2002022815P100874222. It is further pleaded that complainant also paid annual premium amount of Rs.18,196/- to the opposite party No.1 which was duly accepted by the opposite party No.1 for the period of insurance policy from 25.4.2016 to 24.4.2017. It is further pleaded that from the date of first insurance i.e. 25.4.2011, the complainant has not claimed any insured amount till the filing of the present claim amount. It is further pleaded that unfortunately on 24.12.2016, the complainant felt uneasiness and developed certain physical complication of vomiting etc. with the result, the complainant got himself admitted to Gurnoor Hospital, 291 Ranjit Nagar, Qadian Road, Batala and wherein the doctor attending on him admitted the complainant for further treatment and the complainant remained admitted in the said hospital upto 26.12.2016 and incurred the expenses amounting to Rs.8,713/- as hospitalization charges and medicines etc. which was duly paid by the complainant. It is further pleaded that the doctor of that hospital further referred the complainant to some reputed hospital for the treatment of the disease which was not controllable by the doctor of M/s Gurnoor Hospital Batala due to want of proper medical infrastructure and equipments etc. It is further pleaded that thereafter the complainant consulted the doctor of reputed hospital M/s Dayanand Medical College & Hospital Ludhiana, wherein the doctor attending upon the complainant got admitted him on 27.12.2016 in the department of Gastroenterology and remained there uptill 02.01.2017 under the treatment of the doctors of that hospital. It is further pleaded that during the treatment of the complainant from the period 27.12.2016 to 02.01.2017, the complainant incurred the expenses amount to Rs.69,075.12/- as hospitalization charges consisting of room rent, drugs, pharmacy, diagnostic tests etc. It is further pleaded that the complainant incurred the total hospitalization charges from 24.12.2016 to 02.01.2017 i.e. Rs.8,713/- and Rs.69,075.12/- totaling to Rs.77,788.12/-. It is further submitted that the opposite parties were periodically informed about the hospitalization of the complainant telephonically and otherwise also. It is further pleaded that complainant also requested the opposite parties that his treatment in the above said hospitals being declared as cashless facility in view of the terms of the above said insurance. It is further pleaded that the opposite parties refused the hospital authorities as well as the complainant of cashless facility, with the result the complainant incurred all the above stated hospital charges amounting to Rs.77,788.12/- from his own pocket by way of cash. It is further pleaded that according to the terms of insurance policy the opposite parties were/are under legal obligation to inform the hospital regarding cashless facility which the opposite parties failed to do so at the time of hospitalization of the complainant. It is further pleaded that thereafter, the complainant submitted all bills, invoices, cash memos and other hospitalization charges incurred by him at both the episodes but inspite of deposit of claim to the opposite parties within time, the opposite parties have failed to pay the above said amount of Rs.77,788.12/- to the complainant till to date inspite of repeated requests and demands of the complainant. It is further pleaded that the opposite parties have neither paid the said amount of hospitalization charges of Rs.77,788.12/- nor have cared to give any response to the demands and requests of the complainant till to date. It is further pleaded that after waiting for a considerable period, the complainant served a notice dated 30.05.2017 upon the opposite party No. 1, wherein, the complainant gave the period of 15 days from the date of notice to pay the amount of Rs.77,788.12/- to the complainant and in case of nonpayment of the same or silence for not responding to the above said notice, the complainant shall presume that the opposite parties have repudiated the claim above stated and they have no intention to make the payment of the claimed amount to the complainant. It is further pleaded that inspite of the above said registered notice served upon the opposite party No. 1, has not responded to the notice of the complainant and is still silent upon the claim of the complainant. It is further pleaded that in compliance of the above said notice, the opposite party No. 1 vide its letter bearing Ref. No. Misc./DK/2017-658 dated 19.06.2017 has informed the complainant that his claim has been repudiated as per clause 4.9 of the insurance policy. It is further pleaded that the opposite party No. 1 is exhibiting and claiming that it is the responsibility of opposite party No. 2 to make the payment of the above said claimed amount to the complainant on behalf of opposite party No. 1 being the 3rd party administrator of the opposite party No. 1. It is further pleaded that the complainant is not bound by any such contract of the opposite party No. 1 with the opposite party No. 2 for making the payment by the opposite party No. 2 as there is no privity of contract of the complainant with the opposite party No. 2. It is further pleaded that if there is any internal arrangement made between the opposite parties No. 1 and 2 regarding the payment of insured amount, the complainant is not bound by any such arrangement between the opposite parties legally. It is further pleaded that the opposite parties No. 1 and 2 can be directed jointly and severally to pay the claim amount. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to remit the amount of Rs.77,788.12/- to the complainant being the principle amount which was incurred by the complainant from his own pocket during his treatment / hospitalization as fully detailed above alongwith interest @18% per annum from the date of spending of principal amount till its realization from the opposite parties. The opposite parties also burdened with amount of Rs.20,000/- as litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint. It is further pleaded that the complaint is not legally maintainable and complaint has been filed against the Branch Manager and Chairman in person and not against the Insurance Company. It is further pleaded that contract of Insurance is with Insurance Company and not with its officials and as such the present complaint is liable to be dismissed. It is further pleaded that the insurance is a contract between the two parties. The liability of Insurance Company is only as per terms and conditions of the policy and the scope of the terms and conditions cannot be increased or decreased. It is further pleaded that both the parties are bound with the terms and conditions of insurance policy and there is no deficiency in services on the part of Insurance Company. It is pleaded that the claim of the complainant has been repudiated as per terms and conditions of the policy vide letter dated 19.06.2017. It is further pleaded that claim has been lodged and after going through the documents it is observed that patient is suffering from Cirrhosis (Alcoholic) Decompensate with HE Grade I-II having H/O Chronic Alcohol abuse with Alcohol and Nicotine dependence and it falls outside the scope of the policy as intentional self-injury and use of intoxication drugs/alcohol are not payable. It is further pleaded that the case of the complainant falls under exclusion clause no. 4,9 of the policy which may be read as under:-
Convalescence, general debility: run-down condition or rest cure, obesity treatment and its complications including morbid obesity, congenital external disease or defects or anomalies, treatment relating to all psychiatric and psychometric disorders. It is further pleaded that the discharge summary of Dayanand Medical College and Hospital, Ludhiana. Other documents are very much clear in this regard.
On merits, the opposite party No.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order date 13.11.2017.
5. Learned counsel for the complainants has tendered into evidence affidavit of Rakesh Kumar Mahajan, (Complainant) (now decreased) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-36.
6. Learned counsel for the opposite partyNo.1 has tendered into evidence affidavit of Sh. Jai Krishan, (Authorized Signatory, United India Insurance Company Ltd, Pathankot) as Ex.OP-1/1 alongwith other documents as Ex.OP-1/2 to Ex.OP-1/17.
7. Written arguments filed by the complainant but not filed by the opposite party No.1.
8. Counsel for the complainant has argued that during the continuation of health policy of insurance complainant remained admitted at Gurnoor hospital Batala and thereafter at D.M.C. Ludhiana on 27.12.2016 till 02.01.2017. It is further argued that complainant had spent amount of Rs.69,075.12/- as hospitalization charges and in additional to that spent Rs.8713/- regarding hospitalization from 24.12.2016 to 02.01.2017. It is further argued that on claim being lodged the claim was repudiated by the opposite parties which amounts to deficiency in service.
9. On the other hand counsel for the opposite party No.1 has argued that on claim being lodged and after going through the documents it was found that the patient Rakesh Kumar was suffering from Cirrhosis (Alcoholic) Decompensate with HE Grade I-II having H/O Chronic Alcohol abuse with Alcohol and Nicotine dependence and as such case of the complainant falls under exclusion clause 4.9 of the policy and accordingly claim was right repudiated by the opposite parties.
10. Opposite party No.2 remained exparte.
11. We have the Ld. counsels for the complainant and opposite party No.1.
12. It is admitted fact that insured Rakesh Kumar Mahajan had purchased health insurance policy from the opposite parties Ex.C2 valid from 25.04.2016 to 24.04.2017. It is further admitted fact that complainant remained admitted at Gurnoor hospital Batala and D.M.C. Ludhiana and had spent amount of Rs.77,788.12/- on his treatment. It is further admitted fact that claim lodged by the insured was repudiated by the opposite parties insurance company. The only disputed question for adjudication before this Commission is whether the opposite parties have repudiated the claim on the basis of discharge summary Ex.OP-1/11 as per which it is mentioned that patient was found to be alcoholic and Nicotine dependence. The claim has been repudiated by the opposite parties by relying upon the exclusion clause 4.9 in the policy of insurance but we are of the view that it has not been pleaded and proved by the opposite parties that the said terms and conditions contained exclusion clause was ever explained to the insured at the time of sale of policy of insurance. As such we are of the view that repudiation of claim by the opposite parties by relying upon the exclusion clause is totally unjustified.
13. We have reliance upon judgment of Hon'ble Punjab and Harayana High Court reported in 2008(3) R.C.R(Civil) Page 111 in Civil Revision No.2318 of 2008. D/d. 22.04.2008 in case titled as New India Assurance Company Limited Versus Smt.Usha Yadav & Others wherein it is held as under:-
"Insurance claim - Insurance companies rely on hidden conditions to reject claims of insured - In the instant case deceased obtained medi-claim Insurance Policy which provided that no claim would lie in case of death by use of Intoxication drugs/alcohol - Deceased died of alcohol consumption and other diseases - Repudiation of claim by Insurance Company is illegal as use of alcohol was not the only cause which led to the disease - Insurance Company also directed to pay cost of Rs.5,000/- for luxury litigation, being rich - Held:-
(1) It seems that the Insurance Companies are only interested in earning the premiums and find ways and means to decline claims.
(2) All condition which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy". (Paras 2,3,4 and 5).
14. We have further reliance upon judgment of Hon'ble Supreme Court of India reported in 2000(1) Apex Court Journal 398 in Civil Appeal No.6895 of 1997. D/d. 22.2.2000 in case titled as M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. as per which Hon'ble Supreme Court of India has held as under:-
"Consumer Dispute - National Commission set aside the decision of State Commission in appeal - National Commission based its decision on the exclusion clause in contract and "New Plea" in appeal - Held, the exclusion clause was neither a part of the contract of insurance nor disclosed about the clause to appellant, respondent cannot claim benefit of exclusion clause - Respondent pleaded before the State Commission that the property damaged was not covered under the insurance policy - This plea was given a go-bye before National Commission and a new plea taken up that terms and conditions of insurance policy were violated by the appellant by using used kiln furniture - Finding of National Commission not tenable in law - Appeal allowed". (Paras 5,6,9,10 and 11).
15. We have also reliance upon judgment of Hon'ble Supreme Court of India reported in 2020(1) Apex Court Judgments 638 (S.C.) in Civil Appeal No.10398 of 2011, D/04.02.2020 in case titled as New India Assurance Co. Ltd. & Ors. Vs. Paresh Mohanlal Parmar as per which Hon'ble Supreme Court of India has held as under:-
"Consumer Protection Act, 1986, S.12 - Insurance claim - Non- communication of terms and conditions of insurance policy to insured - Not open to insurer to rely upon exclusionary clause of policy". (Paras 10 & 11).
16. We have next reliance upon judgment of Hon'ble Supreme Court of India reported in 2019(1) Apex Court Judgments 663 (S.C.) in Civil Appeal Nos.49-50 of 2019 (@ SLP ( C ) Nos.24070-24071 of 2015), D/04.01.2019 in case titled as Madhav Hair Joshi. Vs. Divisional Manager, Life Insurance Corporaton of India & Anr. as per which Hon'ble Supreme Court of India has held as under:-
"Consumer Protection Act, 1986, S.23 - Deficiency in service - Equity linked insurance plan - LIC held on the moneys wrongfully for five years - Omission to refund deprived appellant the use of his money - Mere direction for payment of interest at 12% per annum on the principal amount will not provide sufficient address - An additional amount of Rs.2,00,000/- directed to be paid towards all the claims, demands and outstandings, including litigation expenses". (Paras 20 to 22).
17. As such by relying upon the above judgments, facts and evidence on record we are of the view that repudiation of the claim by the opposite parties amounts to deficiency in service.
18. Accordingly, present complaint is partly allowed and opposite parties are directed to settle and pay the claim as per terms and conditions of the policy of insurance within 30 days of receipt of copy of this order. However, if claim is not settled and paid within 30 days from the receipt of copy of this order the amount shall carry interest @ 9% P.A. from the date repudiation i.e. 19.06.2017 till realization. Opposite parties are further directed to pay compensation of Rs.5,000/- on account of mental tension, harassment and costs of litigation within 30 days from the receipt of copy of this order.
19. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
20. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Oct. 20, 2023 Member.
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