Punjab

Faridkot

CC/19/287

Sukhdev Kaur Sran - Complainant(s)

Versus

Canara Bank - Opp.Party(s)

Gurwinder Brar

23 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT

 

Complaint No. :     287 of 2019

Date of Institution:  10.12.2019

Date of Decision :   23.08.2023

 

1. Sukhdev Kaur Sran aged about 64 years wife of Makhan Singh, resident of House No.1262, Ward No.21, Surgapuri, Du`1wareana Raod, Kotkapura, District Faridkot.
2. Bhupinder Singh Sran aged about 49 years, son of Makhan Singh r/o Duwareana Road, Valmiki Chowk, Kotkapura, District Faridkot.
3. Rajinder Singh Sran aged about 46 years son of Makhan Singh r/o Near Rajindera Medical Store, Duwareana Road, Kotkapura, District Faridkot.

                                                 ...Complainants

Versus

 

1. Canara Bank, Branch Kotkapura through its Branch Manager.
2. HDFC ERGO General Insurance Company Limited, 5^th Floor, Tower 1, Steller IT Park, C-25 Sector-62, Noida, 201301.

.....OPs

Complaint under Section 35 of the

Consumer Protection Act, 2019.

                       

Quorum:    Smt Kiranjit Kaur Aroa, President,

Sh Vishav Kant Garg, Member.

 

Present:       Ms Gurwinder Singh Brar, Ld Counsel for complainant,

Sh Dildeep Singh, Ld Counsel for OP-1,

Sh Varun Gupta, Ld Counsel for OP-2.

ORDER

(Kiranjit Kaur Arora, President)

                                          Complainants have filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against OP seeking directions to OPs to make payment of insurance claim on

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account of death claim of her husband, who was insured with OP-2 against insurance policy bearing no.120100/12001/2018/A012706/922 and for further directing OP-2 to pay Rs.30,000/- as compensation for harassment, inconvenience, mental agony and litigation expenses.

2                                        Briefly stated, the case of the complainant is that Makhan Singh deceased husband of complainant was having saving account with the bank of OP-1 and during his life time, on assurance of OP-1, her husband purchased insurance policy of OP-2 which was valid for the period from 27.04.2019 to 26.04.2020 and he paid Rs.5586.12 as premium for said policy. At the time of purchasing the insurance policy, OPs assured complainant that in case of any problem, if treatment is taken from approved hospital of Insurance Company, then treatment would be done free of any charges and if treatment is taken after payment of hospital charges, then it would be reimbursed by Ops within 15 days of application regarding reimbursement of expenses. It is submitted that during the subsistence of insurance period, husband of complainant suffered from pain in left arm and he was admitted into Dayanand Medical College and Hospital, Faridkot and was operated upon there. Several tests were conducted upon him and it was found that he was also suffering from many diseases like hypertension, chronic liver disease etc. Hospital authorities sent intimation to OP-2 regarding problems suffered by insured Makhan Singh and sought approval for cashless claim, but OPs rejected the cashless services to the insured vide letter dated 29.08.2019. on 30.08.2019, condition of her husband

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deteriorated and he died in the hospital. Complainants spent Rs.4,55,046/-on treatment of Makhan Singh and thereafter, they submitted all bills and other relevant documents to OPs, but OPs repudiated the genuine claim of complainants on false grounds. Complainants approached OPs several times and made them abundant requests to pass their genuine insurance claim, but OPs did not pay any heed to the requests of complainants and did not pay a single penny. Complainants made several requests to OPs to clear the insurance claim, but all in vain. Claimed that all this amounts to deficiency in service and trade mal practice. Complainants have prayed for accepting the present complaint with directions to OPs to make payment of amount spent by them on treatment of Makhan Singh and have further prayed for compensation for harassment and mental agony suffered by them besides expenses incurred on present litigation. Hence, the present complaint.

3                                             The counsel for complainant was heard with regard to admission of the complaint and vide order dated 16.12.2019, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               In response to notice issued by this Commission, OP-1 appeared and filed his reply through counsel wherein took preliminary objections that complainants have not approached this Commission with clean hands and are therefore not entitled for any relief. It is further averred that present complaint is filed with ulterior motive only to harass the answering OP. It is contended that complainant

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does not fall within the insurance matter and present complaint involves complicated questions of law and order requiring voluminous evidence that is not possible in the summary proceedings of this Commission. No cause of action arises against answering OP as they have no locus standi to file the present complaint. However, on merits, OP-1 has denied all the allegations of complainant being wrong and incorrect and prayed for dismissal of complaint with costs.

5                                           OP-2 also filed reply taking preliminary objections that present complaint is not maintainable as it is filed with ulterior motive only to misguide the Forum and even complainant has not come to the Commission with clean hands. Complicated questions of law and facts are involved requiring voluminous evidence that is not possible in the summary procedure of Consumer Commission and he is stopped from filing the present complaint due to his own act and conduct. No cause of action arises in favour of complainant and complainant is not entitled for relief sought as insured was admitted into the hospital with diagnosis of Chronic Liver Disease-Alcohol related with UGI Bleed, Sepsis with shock, AKI-recoverved, left Upper Limb Cellulitis MRSA Positive K/C/O Hypertension and as per policy terms and conditions related to alcohol Chronic Liver Disease-Alcohol is not covered under the policy and therefore, denial of request for cashless treatment is justifiable. However, on merits, it is admitted that deceased paid requisite premium to answering OP and after completing all formalities, got renewed the Group Health Insurance Policy for Rs.5 lacs

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from 27.04.2016 till death. It is also admitted that cashless request received from DMC, Ludhiana on 07.08.2019 for estimated cost of Rs.64,000/- and after scrutiny of documents, approval for Rs.40,000/-was given. It is averred that from the careful perusal of final bills and Discharge Summary, it was observed that deceased was taking alcohol for last 15 years and therefore, previous authorization was cancelled and cashless request was rejected stating that “As per the available documents, ailment for which treatment is sought comes under standard exclusion of policy terms and condition i.e Treatment related to alcohol related CLD is not covered as per policy terms”. Answering OP has rightly denied the cashless treatment and complainant is entitled for claim sought. There is no deficiency in service on the part of answering OP and prayer for dismissing the complaint with costs is made.

6                                    Parties were given proper opportunities to prove their respective case. Ld counsel for complainant tendered into evidence affidavit of complainant Ex C-1 and documents Ex C-2 to Ex C-12 and then, closed the evidence on behalf of complainant.

7                                    To controvert the allegations of complainant, ld counsel for OP-1 tendered into evidence affidavit of Rupinder Pal Kaur, Branch Manager, Canara Bank Ex OP-1/1 and then also closed the same on behalf of Opposite Party-1. Ld Counsel for OP-2 also tendered into evidence affidavit of Manoj Prajapati ex OP-2/1 and documents Ex OP-2/2 consisting of 269 pages and then closed the evidence on behalf of OP-2.

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8                                                We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsel for the parties.

9.                                         It is the admitted case of the parties that the complainant was insured with opposite party No.2 vide Insurance Policy  bearing No.120100/12001/2016/A005425/PE00211098 and during the subsistence of this policy, the  complainant suffered from pain and swelling in left arm and was admitted in Dayanand Medical College and Hospital Managing Society from 06.08.2019 and he was discharged on 05.09.2019, where he spent Rs.4,55,046/-on his treatment. To prove this fact, the complainant has placed on record medical bills.

10.                                     The learned counsel for the opposite party no.1  has contended that all the terms and conditions as mentioned in the policy issued by opposite party No.2 shall be binding between the complainant and opposite party No.2. No liability whatsoever can be fastened upon the opposite party No.1.

11.                                          On the other hand, the case of the opposite party No.2 is that as per exclusion clause of insurance policy, the expenses incurred on treatment of the complainant  are not payable . Thus the claim does not fall under the scope of policy. The insured is bound by the terms and conditions of the insurance policy. Exclusion clause is part of the policy terms and conditions and hence there is no deficiency on the part of opposite party No.2. Therefore, in these

 

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circumstances, the claim has been rightly rejected vide letter dated 29.08.2019 .

12.                                    The learned counsel for the complainant has argued that the husband of the complainant deceased Makhan Singh had taken Insurance policy since 2015 and the same was renewed from time to time. Moreover no policy terms and conditions were supplied to the complainant by the opposite parties. The opposite parties have wrongly, malafidely and arbitrarily declined the mediclaim of the complainant. On this point, he has relied upon the law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide Order dated 30.01.2013 passed in Revision Petition No.186 of 2013  titled “HDFC Ergo General Insurance Co. Ltd. Versus Rachhpal Singh” and the relevant portion is reproduced as under:

“A. Consumer Protection Act, 1986 Sections 2 (1) (g), 14 (1) (d) and 21(b) Life Insurance – By-pass Surgery – Reimbursement of medical expenditure on surgery alleged suppression of pre-existing disease – Claim repudiated on that ground – Complaint of deficiency in service of insurer – Held that the insurer was duty-bound to supply the terms & conditions of the policy to the insured immediately after receipt of premium – Insurer failed to do so – Claim cannot be repudiated on the basis of terms and conditions of policy as to concealment of facts.

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 The learned counsel for complainant further contended that as per guidelines of IRDA whenever any medical policy is issued to consumer, before that he was to be medically checked by empanelled doctors/ as per guidelines of concerned company so that clear medical condition of the patient can be brought into the notice before issuance of policy. Furthermore, before issuing the insurance policy, it is mandatory to conduct medical examination of life assured, the empanelled doctor of the Insurance Companies duly medically examines the insured. In the complaint in hand, empanelled doctors of opposite parties have remained fail to diagnose any such pre-existing disease to the complainant. Counsel for Complainant placed reliance on citation titled as “SBI General Insurance Company Limited Vs Balwinder Singh Jolly and another” 2016 (4)CLT 372 held as under:

“Preexisting diseases as of insured when medical insurance policy was issued was more than 45 years- Held- in that event as per Instructions issued by IRDA it was duty of the insurer to put insured to through medical examination claim raised after issuance of insurance policy cannot be rejected on account of non disclosure of the fact of  preexisting disease when policy was obtained.”

and has also relied upon the law laid down by the Hon'ble Supreme Court of

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India vide Judgment dated 06.12.2021 passed in Civil Appeal No.8386 of 2015 titled “Manmohan Nanda Versus United India Assurance Co. Ltd.” and the relevant part of which is as under:

"(ii) Consumer Protection Act, 1986, S.23 – Mediclaim insurance policy– Duty to disclose material facts by insured – Analysed – (i) Duty to disclose material facts at the time of making the proposal; (ii) material fact in a case depend upon health and medical condition of the proposer; (iii) Specific answers be made to specific queries; (iv) If a column is left blank, in the proposal form, then insurance company to ask the insured to fill it up – If inspite of blank column, insurance company accepts the premium and issues a policy, then at the later stage Insurance Company cannot say that there is suppression or non disclosure of a material fact; (v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors; (vi) Once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing

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medical condition which was disclosed by the insured in the proposal form;

(vii) In other words, a prudent insurer has to gauge the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so.

 

 13.                                It has been observed by the commission that husband of complainant no. 1 was insured under the policy in question and during the validity of insurance period, he died and after his death, complainant submitted claim alongwith bills and documents to OPs, but they did nothing needful in making payment of genuine insurance claim to him. OPs took plea that deceased insured was taking alcohol for last 15 years, but there is nothing on record brought by OPs to prove that he was consuming alcohol. Neither any documentary evidence nor any witness is brought before the Commission to justify the repudiation by OPs. On the other hand, complainant has placed on record sufficient and cogent evidence to prove his pleadings and all documents placed on record by them are authentic and are beyond any doubt. At the time of issuance of policy and while accepting premium, OPs did not raise any objection, but now at the time of making payment of insurance claim on account of death of insured, they have starting raising unreasonable, meaningless objections. By repudiating the claim of complainant on false grounds of alcohol consumption by deceased, OPs cannot escape

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from their liability of making payment of genuine insurance claim of the complainant. It appears that the opposite parties have different yard sticks at the time of accepting the policy for procuring the business and different face at the time of discharge of its lawful liability. In the present complaint in hand, the opposite party no.2 in his reply on brief facts vide para no.1 admitted “That the deceased paid the requisite premium to the replying answering OP and further fulfilled the entire  formalities of the Company for issuing the policy and after satisfied and believe on the assurance of the deceased policy holder, then the replying OP issued policy to the assured with sum assured of Rs. 5 lacs from 27.04.2016 till death regularly renew the policy”. But even then the opposite party no.2 rejected the genuine claim of the complainant which amounts to deficiency in service on the part of opposite party no.2.

14.                           In view of what has been discussed above, the commission is of considered opinion that the present complaint is allowed and claim rejection letter dated 29-08-2019, which is Ex.C-10  is hereby set aside. Opposite party No.2 is directed to pay Rs.4,55,046/- as medi claim to the complainants in equal shares alongwith interest @6%per annum from filing of the present complaint i.e. till its final realization. The opposite party No.2 shall comply with this order within  45 days from the date of receipt of copy of order, failing which opposite party no.2 shall pay the amount alongwith interest @9% P.A. till its realization. In addition to this, the opposite party No.2 is also directed to pay Rs.5,000/- as consolidated compensation for mental agony, pain

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 and harassment as well as litigation expenses.  Complaint against opposite party No.1 stands hereby dismissed.

15                            The complaint could not be decided within the stipulated period due to heavy pendency of cases and incomplete of quorum. A copy of this order be communicated to the parties concerned free of costs.  File be consigned to the record room.

Announced in Commission

Dated : 23.08.2023

 

Member                                           President

             (Vishav Kant Garg)                (Kiranjit Kaur Arora)