Complaint No: 198 of 2019.
Date of Institution: 14.06.2019.
Date of order: 20.02.2024.
Sunny Goyal Son of Late Vinod Goyal, resident of South City, Phase No. 1, Umarpura Road, Batala and District Gurdaspur.
….....Complainant.
VERSUS
1. Canara Bank, SME Branch Amritsar Road, Batala, through its Branch Manager.
2. Apollo Munich Insurance Company, Branch Amritsar, through its Branch Manager, now merged with HDFC Ergo General Insurance Company Ltd., 3rd Floor, Nagpal Tower – 1, SCO 128, B – Block, Ranjit Avenue, Amritsar, through its Branch Manager.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Ms.Meena Mahajan, Advocate.
For the Opposite Party No.1: Sh.Rajinder Kumar, Advocate.
For the Opposite Party No.2: Sh.Sachin Mahajan, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sunny Goyal, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Canara Bank Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is having a bank account in the Branch of the OP No. 1 bearing A/c No. 2085101029489. It is pleaded that the OP No. 1 has tie up with the OP No. 2 and OP No. 1 advised the complainant to purchase the insurance policy from the OP No. 2 through bank i.e. OP No. 1. On the advice of the OP No. 1, on 13.02.2018, the complainant has purchased the Group Health Plan Insurance Policy from the OP No. 2 through the OP No. 1 vide insurance policy No. 120100/12586/2018/A007873/PE00856261 Sum insured of Rs.5,00,000/-. Insurance Policy covers the time from the period of 13.02.2018 to 12.02.2019. Premium has been deducted from the saving account of the complainant amounting to Rs.6,045/- by the opposite parties. It is further pleaded that again on dated 31.01.2019, the opposite parties again renewed the insurance policy of the complainant by deducting the premium from the bank account of the complainant automatically in advance approximately 10 days before the completion of policy time amounting to Rs.6,045/- vide insurance policy No.EA01090614 sum insured of Rs.5,00,000/- in insurance policy covering the time from the period of 13.02.2019 to 12.02.2020, but till date the complainant has not received the original insurance policy cover note and insurance card from the opposite parties. It is further pleaded that unfortunately on dated 25.12.2018, the complainant was suffering from abdomen pain and back pain. On the very next day i.e. on dated 26.12.2018, the complainant went to DMC, Ludhiana for medical checkup. On the same day, concerned doctor of DMC, Ludhiana medical examined the complainant and prescribed the medicine and advised for ultrasound of abdomen. On the next day i.e. on dated 27.12.2018, the complainant got his ultrasound from PGI Radio Diagnostic Centre, Batala. It is further pleaded that in the ultrasound, stones have been appeared in the both kidneys, but the stone appeared in the right kidney showing 6.5 MM gave more pain because the stone appeared in the urine pipe. Thereafter, the complainant went to Dr. Sandeep Sharma, Urology Clinic, Majitha Road, Amritsar on dated 02.01.2019 and he advised the complainant to admit in the Dhaliwal Hospital at Dhariwal. On the advice of the doctor Sandeep Sharma, the complainant admitted on the very same day i.e. on dated 02.01.2019 and Dr. U.S. Dhariwal and Dr. Sandeep Sharma concerned doctor investigate the problem and gave the treatment to the complainant and Dr. Sandeep Sharma inserted the Stunt in the urine pipe / penni of the complainant. It is further pleaded that Stunt has been inserted by the doctor Sandeep Sharma because the complainant has been suffering from infection in the right kidney as per the ultrasound report dated 27.12.2018. If the Stunt is not inserted, then damage will be caused to the right kidney of the complainant due to the spread of infection, thereafter, discharged the complainant on dated 04.01.2019. Again on dated 10.01.2019, the complainant went to Dr. Sandeep Sharma, Amritsar and the concerned doctor prescribed the medicines. It is further pleaded that the complainant at the time of admission in the Dhaliwal Hospital at Dhariwal informed the opposite parties regarding the problem and about the admission in the Hospital in the toll free number of the OP No. 2 for getting the Cashless Medical Facilities / Cashless Health Insurance Policy Facility. On that the dealing hand told the complainant that firstly the complainant should spend the whole medical expenses from his own pocket. It is further pleaded that after discharge from the Hospital, the complainant submitted his claim before the opposite parties. On the advice of the dealing hand of the OP No. 2, the complainant afforded all the medical expenses from his own pocket amounting to Rs.34,747/- and after discharge he submitted his claim form before the opposite parties on dated 21.01.2019 and same was repudiated by the opposite party No. 2 on dated 25.01.2019 by mentioning the reason that the submitted claim is for the illness ureteric, calculus which has a specific two year of waiting period as per the policy and policy start date is 13.02.2018 and the claim is repudiated under section V.A ii of the policy. It is further pleaded that the insurance company i.e. OP No. 2 at the time of sanction the insurance policy in favour of the complainant, terms and conditions of the policies not cleared by the insurance company as well as by the bank to the complainant regarding the clause V.A ii of the policy. Actually, the opposite parties till date has not hand over the first and second insurance policy cover note alongwith the terms and conditions in physical form to the complainant and always deducted the premium from the bank account of the complainant. It is further pleaded that the complainant is suffering from the hands of the opposite parties. The complainant has approached the opposite parties number of times with the request to make the payment of the amount being spent by the complainant on his treatment, but all his efforts proved to be futile and the legal and genuine request of the complainant were put on deaf ears, which necessitated the complainant to file the present complaint. 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 unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of Rs.34,747/- alongwith interest at the rate of 18% per annum from the date of due till its actual realization which the complainant has spent/incurred on his treatment. It is further prayed that the opposite parties may also be directed to pay compensation to the tune of Rs.25,000/- for physical harassment and mental agony and be directed to pay compensation and litigation expenses amounting to Rs.10,000/- to the complainant on account of mental and physical harassment suffered by 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, stating therein that the complainant is having bank account with the answering opposite party No.1. It is pleaded that the answering opposite party No.1 has no role between the complainant and the opposite party No.2 and the complaint against the answering opposite party No.1 is not maintainable and is liable to be dismissed.
On merits, the opposite party No.1 denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favour of the complainant and against the answering opposite party No. 2 to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. It is pleaded that averments made and contentions raised in the complaint which are not specifically admitted hereinafter are not true and not admitted. At the very outset the answering opposite party No. 2 deny all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. The complaint under the reply is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such the complaint is liable to be dismissed on this ground alone. The answering opposite party No. 2 submits that the complainant has created a false story in his complaint to mislead this Hon'ble Commission by concocting and distorting the facts and circumstances of the present case. It is further pleaded that the present complaint is liable to be dismissed in view of the settled proposition of law that the Contracts of Insurance are contracts of Uberrima fides - utmost good faith - and every material fact must be disclosed, otherwise there is a good ground for recession of the contract. The said law has been upheld by Hon'ble Supreme Court of India in a catena of judgments. Evidently, the complainant had concealed material facts and had falsely stated the fact of his health in the Proposal Form. Therefore, the present complaint is liable to be dismissed. It is further pleaded that the Proposal Form / Enrolment form is the basis of the insurance contract. The decision of the Insurance Company whether to grant insurance cover to the applicant/proposer solely depends upon the various facts, disclosure, information, statements and declarations made by the applicant/proposer in the Proposal Form / Enrolment form. Further, the various terms of the insurance contract/cover including the premium amount, maturity amount etc. depends solely upon the said facts, disclosure, information, statements and declarations in the Proposal Form / Enrolment Form. One great principle of Insurance Law is that a contract of insurance is based upon utmost good faith, Uberrima fides. Therefore, the Principle underlying the doctrine of disclosure and the rule of good faith oblige the proposer to answer every question put to him with complete honesty. It is further pleaded that as per IRDA (Policy holders Interests) Regulations, 2002 section 2 (d) - “Proposal form means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk to determine the rates, terms and conditions of a cover to be granted”.
Thus the basis of granting an insurance policy therefore can be seen is "Proposal Form" and if the complainant with a fraudulent intention hides/misrepresents and provides fraudulent information while filling the same, then insurance company is justified in not only rejecting the fraudulent claim, but also cancelling the policy and the answering opposite party has done accordingly while considering the claim of the complainant. It is further pleaded that the answering opposite party submits that claims are paid by any Insurance Company out of the common pool of funds belonging to all policyholders of the company and insurance company has to check the admissibility of a claim before honoring it. The present complainant deserves to be dismissed as the complainant has concealed material facts from this Hon'ble Commission. The true facts are that the submitted claim is for the illness of Ureteric Calculus which has a specific 2 year(s) of waiting period as per the policy and the policy start date is 13 Feb, 2018. It is further pleaded that the fact of matter is that the complainant i.e. Sunny Goyal "Assured" (here-in-after referred to as Proposer) had submitted to the answering opposite party on dated 13.02.2018, a proposal/application for the purchase of Easy Health Individual Standard Plan from Apollo Munich Health Insurance Company for himself, his wife and children, the proposal was accepted on the standard rates based on the information provided by the complainant and consequently a policy was issued bearing policy No.120100/12586/2018/A007873/PE00856261 dated 13.02.2018 and the same commenced on dated 13.02.2018 and valid up to 12.02.2019 which was renewed on annual basis. The benefits under the Policy are however, subject to certain conditions and exclusions, which have been clearly, specifically and categorically mentioned under the Policy Wording. The present complaint is an afterthought and has only been filed with the ulterior motives to harass and humiliate the answering opposite party. Hence, the present complaint deserves to be dismissed. It is further pleaded that the complainant/proposer never approached the answering opposite party stating that any information given in the documents in the Policy Kit was incorrect or any term and condition therein was not acceptable to him within the Free Look Period i.e. 15 days from the receipt of the policy document to review the terms and contract of the policy. The answering opposite party has strictly issued the policy based on information disclosed by the Proposer. Further the policy wordings had also been duly received and were readily available with the complainant. Hence, the said complaint is liable to be dismissed on this ground alone. It is further pleaded that the answering opposite party received reimbursement claim on dated 21.01.2019 for treatment at Dhaliwal Hospital for Sunny Goyal i.e. complainant, who got admitted for C/o RIGHT UPPER SIDED URETERIC STONE with date of admission 02.01.2019 and date of discharge 04.01.2019 with claimed amount of Rs.34,747/-. On post reviewing the documents, it was found that the submitted claim is for the illness of Ureteric Calculus which has a specific 2 year (s) of waiting period as per the policy and the policy start date is 13 Feb, 2018. Hence, the claim was rejected vide letter dated 27.05.2019 stating that:-
“The submitted claim is for the illness Ureteric Calculus which has a specific 2 year (s) of waiting period as per the policy and the policy start date is 13 Feb, 2018. Hence, we regret to inform you that your claim”.
It is further pleaded that the answering opposite party No. 2 rightly rejected the claim of the complainant as per the terms and conditions of the policy and the same was communicated to the complainant. The present complaint is thus presented, ridden with allegations of deficiency in service and unfair trade practices, but the present complaint miserably fails to co-relate the facts and incidents in order to prove any deficiency in service and unfair trade practice. It is further pleaded that the present complaint is false, frivolous & vexatious besides being devoid of any merits and has been filed with a view to malign the credential & reputation of the answering opposite parties No. 2 with dishonest intentions to detriment the answering opposite party and to the illegal advantage to the complainant.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Sunny Goyal, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-23.
6. Learned counsel for the opposite party No.1 has filed reply.
7. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Vishal Sharma, (Branch Manager of opposite party No. 2 at Gurdaspur) as Ex.OP-2/1 alongwith other documents as Ex.OP-2/2 to Ex.OP-2/4 alongwith reply.
8. Rejoinders filed by the complainant.
9. Written arguments not filed by both the parties.
10. Counsel for the complainant has argued that complainant had purchased health policy form opposite party No.2 and during the continuation of the policy on 25.12.2018 complainant remained admitted at DMC Ludhiana for stone problem and after discharge the complainant lodged claim with the opposite parties which was repudiated by the opposite parties by relying upon some terms and conditions of the policy of insurance which were never supplied and explained to the complainant. It is further argued that repudiation of the claim by the opposite parties amounts to deficiency in service.
11. On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 has nothing to do with the payment of the claim and as such complaint is liable to be dismissed.
12. Counsel for the opposite party No.2 has argued that opposite party No.2 received reimbursement claim on 21.01.2019 for treatment of the complainant and claim amount of Rs.34,747/- and on perusal of documents it was found that the claim is in respect of Ureteric Calculus for which is a specific two years waiting period as per the policy and the policy started on 13.02.2018. Accordingly, claim was repudiated by the opposite party No.2.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. Perusal of file shows that complainant has placed on record copy of health policy Ex.C1 which is accompanied by the terms and conditions wherein the detail of listed illness and treatment is mentioned as per clause 5 exclusion, but the name of illness is not mentioned, as such we are of the view that since it is not proved on record that terms and conditions relying upon which opposite party No.2 has repudiated the claim were ever supplied and explained to the complainant. Opposite party No.2 cannot deny the claim of the complainant.
15. As far as the plea of opposite party No.2 regarding waiting period of two years for Ureteric Calculus is concerned. We are of the view that the medical policy is purchased by the insured person for medical emergencies and many diseases which remained dormant for years and decades in human body and as such the clause regarding waiting period of two years for illness Ureteric Calculus is totally unjustified.
16. We have relied upon judgment of Hon'ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in First Appeal No.40 of 2019 decided on 10.11.2020 titled as Oriental Insurance Company Limited Vs. Sunil Dutt wherein the Hon'ble State Commission has held that "the clause 4.1 is not applicable in the case in hand as per this clause also the expenses on any ailment which is pre-existing or excluded for first time upto three completed years of the policy". There is nothing on record to prove that complainant took treatment for any pre-existing disease diabetes etc. Accordingly, by relying upon the evidence on record and case law cited above we have no hesitation in holding that repudiation of the claim by the opposite party No.2 is totally unjustified.
17. Accordingly, present complaint is partly allowed and opposite party No.2 is directed to pay the amount of Rs.34,747/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization within 30 days from the date of receipt of copy of this order.
18. 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.
19. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Feb. 20, 2024 Member.
*YP*
