Kerala

Idukki

CC/59/2020

P C Joseph - Complainant(s)

Versus

Canara bank - Opp.Party(s)

Adv: km Sanu

20 Feb 2023

ORDER

DATE OF FILING :6.3.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  20^th  day of  February,  2023

Present :

SRI. C. SURESHKUMAR                 PRESIDENT

SMT. ASAMOL P.                            MEMBER

SRI. AMPADY K.S.                          MEMBER

CC NO.59/2020

Between

Complainant                                           :     P.C. Joseph,

                                                                   Panachananickal House,

                                                                   Muthalakkudam P.O.,

                                                                   Pattayamkavala, Thodupuzha.

          (By Adv:  K.M. Sanu)

And

Opposite Parties                                     : 1. The Manager, 

                                                                   Canara bank,

                                                                   Thodupuzha Branch,

                                                                   Thodupuzha P.O.

       2. The Manager,

                                                                    Appollo Munich General

Insurance Co. Ltd.,

                                                                   39/4967, Uznaz Tower, 5^th Floor,

                                                                   Pallimukku, M.G. Road, Kochi – 682 016.

                                                                   Now named as HDFC ERGO

                                                                             General Insurance Co. Ltd.

 (By Advs: Saji Isaac K.J. & Lissy M.M.)

O R D E R

SRI. AMPADY K.S., MEMBER

 

1. Complainant is an account holder of 1^st opposite party for the past several years.  While opposite parties jointly started issuance of mediclaim policy, 1^st opposite party compelled the complainant to join for the same.  Accordingly he joined   the policy in 2015.  Above policy was being renewed without any default and he paid premium Rs.7986/- for the period from 14.6.2019 to 13.6.2020.  As per policy terms, insurance coverage of Rs.5 lakhs was offered including for ayurveda and unani treatment along with critical illness coverage for Rs.1 lakh.  While so, complainant was affected with fever and cough and he was admitted and treated as inpatient in Holy Family Hospital at Muthalakudam from 16.8.2019 to 19.8.2019.  An amount of Rs.12,637/- was spent for treatment.  Besides, in the month of September, he was affected with shoulder pain and he could not raise his hands and also felt strong numb feeling and was treated as inpatient in Ayurveda Hospital at Vembally from 23.9.2019 to 2.10.2019.  For this, he had to spend Rs.27,512/-.  After discharge from concerned hospitals, he had filed                                                                                                              (cont….2)

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separate claim forms with necessary documents.  But opposite party had delayed to process and allow the claim by giving the message “under process”.  By the end of January 2020, i.e., after 4 months, opposite party sent message “claim rejected” and abstained from reimbursement of amount.

 

As per policy, allopathic, ayurveda and unani treatments were covered.  1^st opposite party had compelled him to join in a policy offered by company which do no honour the claims and it had received commission and profit thereon.  So 1^st opposite party is also equally on the same footing.  Opposite parties have rejected the policy benefits without any basis and it is deficiency in service and unfair trade practice.  Complainant is entitled to recover Rs.40,149/- with 18% interest from opposite parties.  He is entitled for compensation for the deficiency in service of opposite parties.  Hence he prayed for the following reliefs.

1)  Recover and give Rs.40,149/- towards hospital expenses with 18% interest.

2)  Rs.50,000/- may be allowed as compensation for deficiency in service and unfair trade practice of opposite parties. 

3)  Litigation costs of Rs.10,000/- may be allowed. 

 

          2. Opposite party filed written version as follows.  As per the written version, Appollo Munich Health Insurance Company Ltd. has been acquired by Housing Development Finance Corporation Ltd. and renamed as HDFC ERGO Health Insurance Ltd. with effect from January 9^th 2020.  HDFC ERGO Health Insurance Ltd. has been amalgamated with HDFC ERGO General Insurance Company Ltd. and IRDAI has granted final approval for the said merger.  At the outset, the answering opposite party denies all the allegations contained in the complaint, except those, which are specifically admitted hereinafter in this written statement or otherwise dealt with, and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed.  It is also submitted that, anything stated in the complaint contrary to and/or inconsistent with what is stated in the present written statement be deemed to be expressly denied.  Before traversing in detail the several material allegations, averments and contentions made in the complaint under reply, the answering opposite party submits the preliminary objections regarding the maintainability of the present complaint as under :-

1. That the present complaint is vague, erroneous, misconceived, illegal, improper and legally not maintainable in the eyes of law.

2.  That the present complaint is an abuse of process of law and complainant has not approached this Forum with clean hands and thus the present complaint is liable to be dismissed with exemplary costs to deter dishonest litigants such as the complainant.  It is humbly submitted that the intentions and the conduct of complainant in furtherance thereof reeks of malafides and baseless. 

3.  That this Forum has got no jurisdiction to try and decide the present complaint and the complainant is not entitled to get any relief against the answering opposite party.  

                                                                                                                    (cont….3)

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4.  That without prejudice and without admitting the alleged factum of illness, hospitalization, expenses and any liability in the present matter it is specifically submitted that in the present case complainant has made allegations, which need process of examination of chief and cross examination thereof, which is not permissible in the summary process of this Forum.  The present complaint is liable to be rejected on this score alone.

5.  That the answering opposite party reserves its right to modify/amend the present written statement/reply as and when required at a later stage.

6.  The above complaint is an abuse of the process of law and complainant has not approached this Forum with clean hands.  The above complaint is not maintainable either in law or on facts.

 

          That Mr. Joseph PC (the “complaint/beneficiary  insured”) submitted his duly filled and signed Enrolment Form bearing No.CB00182158 proposing the issuance of an “Easy Health Group Insurance” Policy which has been specially customized for the customers of Canara Bank from Appollo Munich Health Insurance Co. Ltd. (“company”) proposing to insure himself with sum assured of Rs.5,00,000/-.  Complainant had signed and submitted the enrolment form after going through the terms and conditions of the policy.  The details of the policy were also explained to him by the insurance agent/sales representative.  It is pertinent to mention herein that complainant/insured had full knowledge of the terms and conditions of the policy and only after going through the application for insurance, thoroughly and properly, had signed the enrolment form.  That further to above, the complainant/insured in last paragraph of the proposal form dealing with “declaration and warranty on behalf of all persons proposed to be insured” has agreed and declared to the following : -

“I/we hereby declare, on my behalf and on behalf of all persons proposed to be insured that the above statements, answers and/or particulars given by me are true and complete in all respects to the best of my knowledge”.

 

          That believing the above said declaration, information and details provided including the medical history by the complainant/proposer in the enrolment form to be true, correct and complete in all respect, giving due credence to the under writing norms of company, a policy No.120100/12001/2018/A012708/070 was issued to complainant/insured for a period commencing from 11.6.2015 till 10.6.2016.  The said policy was further renewed on a yearly basis till 28.6.2019.  it is further submitted that the policy kit containing all relevant documents along with the enrolment form were duly received by complainant/insured thereby giving an opportunity to complainant to verify and examine the benefits, terms and conditions of the policy taken by him.  It is pertinent to submit that complainant/insured never approached the company stating that any information given in the documents in the policy kit was incorrect or any term and condition therein is not understandable or acceptable to him from the receipt of the policy document.  As no objection was received from the complainant, therefore the                                                                                                              (cont….4)

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complainant is strictly bound by the terms and conditions of the policy.  During the continuation of the policy period, complainant filed reimbursement claim vide claim ID:1133709 for an amount of Rs.12,637/- for the hospitalization of complainant  at Holy Family Hospital from 16.8.2019 till 21.8.2019.  Complainant was admitted with complaints of fever, cough, body pain and was diagnosed with lower respiratory tract infection and underwent treatment for the same.  Post scrutiny of documents, it was noted from discharge summary that complainant was diagnosed with LRTI with AOD (Airway obstruction disease).  The relevant portion of the discharge summary is attached herewith.  The answering opposite party sent its query letter dated 20.9.2019 to complainant for providing documents like treating doctor’s certificate regarding duration and history of the airway obstruction disease with first consultation.  It is submitted that despite repeated reminders letters dated 5.10.2019, 14.10.2019 to complainant herein, he failed to provide the required documents for the proper assessment of the claim.  Hence, the claim of complainant was rejected under non-submission of the documents and the same was intimated to complainant vide letter dated 18.10.2019.  The relevant section of the policy schedule is attached herewith.  It is submitted that complainant again filed reimbursement claim vide claim ID:1265384 for an amount of Rs.33,498/- for the second hospitalization of complainant at Vempilly Ayurveda Hospital from 23.9.2019 till 2.10.2019.  Complainant was diagnosed with sandhigathavatham and underwent treatment for the same.  On perusal of the claim documents, it was observed that hospital (Vempilly Ayurveda) was neither NABH accredited nor having registration number, hence case got rejected under wording : ‘As per the submitted documents, the hospital where the member was admitted does not fulfill the criteria of a hospital as per the definition mentioned in the policy.  Hence we regret to inform you that your claim is repudiated under section.’  The relevant section of the policy schedule is attached herewith.  The claim of complainant was rejected and the same was intimated to complainant vide letter dated 24.1.2020.  It is submitted that M/s. Vempilly Ayurveda Centre is not recognized by any Government body nor is accredited to any Government Department and does not qualify under medical parameters under the policy.  The said establishment is more of a retreat centre also providing ayurvedic care.  As the treatment does not qualify to have been carried out in a centre to be defined as a hospital under the policy terms and conditions hence, the claim of complainant was rejected vide rejection letter dated 24.1.2020.  The instant complaint lacks a cause of action.  Therefore, this complaint is liable to be dismissed on want of the cause of action.  Complainant has filed the present complaint with the malafide intention of making wrongful gain by presenting a false and concocted facts only to mislead this Forum.  The above complaint is neither maintainable in law or on facts and the same is liable to be dismissed in limine.  The preliminary objections stated herein above are of vital nature and go to the very root of the case, which may be decided and adjudicated first.  The allegation that the repudiation of the claim is illegal and amounts to deficiency in service is false and hence denied.  There has been no deficiency in service on the part of the answering opposite party.  The contents of prayer is absolutely wrong and false and is emphatically                                                                                                           (cont….5)

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 denied.  It is submitted that complainant is not entitled to the amount of Rs.40,149/- with 18%  interest or cost.  Complainant is also not entitled to the amount of Rs.50,000/- as compensation and Rs.10,000/- for litigation cost.  Complainant is not entitled to any relief whatsoever and recover anything from the answering opposite party No.2 in the light of what is stated above.  It is pertinent to note that the answering opposite party No.2 has always worked within the confines of the terms and conditions of the subject policies and there has been no negligence or deficiency in their services, owing to which, there exists no liability on the answering opposite party No.2 to compensate the complainant in any manner whatsoever.  Hence the complaint may be dismissed with costs. 

 

          3.  Evidence in this case includes documents produced by both parties.  No oral evidence was adduced from both sides.  Complainant produced copy of 4 documents and marked as Exts.P1 to P4 respectively. 

 

Ext.P1 -  One page containing terms and conditions of policy wherein at the top end it is shown as Appollo Munich Health Insurance and Canara Bank and logo is also shown.  It is also shown as “covered” Joseph P.C.

Ext.P2  -  Certificate of insurance – Group Assurance Health Plan of 2^nd opposite party.

Ext.P3  -  IP Bill No.007360 dated 2.10.2019 for Rs.25,305/- regarding treatments and x-ray, lab charges etc. and tax invoice dated 2.10.2019 for Rs.1,494/- towards ayurvedic medicines issued by Vempilli Ayurveda Hospital, Muvattupuzha.

Ext.P4  -  Letter dated 9.10.2019 issued by Holy Family Hospital, Thodupuzha to Manager, Appollo Munich (2^nd opposite party).

 

          2^nd  opposite party filed copy of 3 documents and marked as Exts.R1 to R3 as follows :

 

Ext.R1  -  Certificate of insurance – Group Assurance Health plan (full set).

Ext.R2 - Query letter dated 20.9.2019 and reminder letter dated 5.10.2019 and 14.10.2019 issued by 2^nd opposite party to complainant.

Ext.R3  -   Rejection letter dated 18.10.2019 and 24.1.2020 by 2^nd opposite party to complainant.

 

          4.  Heard the complainant.  1^st opposite party was already declared exparte.  2^nd opposite party filed argument notes.

 

          We have examined the pleadings, contentions and perused the exhibits marked.  On a perusal of the same, following points arise for consideration:

1)  Whether there is any deficiency in service or unfair trade practice on the part of opposite parties ?

2)  Whether the complainant is entitled to the reliefs as prayed for ?

3)  Order to be passed ?                                                                               (cont….6)

- 6  -

5.  Point No.1 :

 

          Allegation of complainant is that though he had submitted relevant documents to 2^nd opposite party, after 4 months, they had rejected the claims for treatments done on two occasions at different hospitals.  Complainant had alleged that 1^st opposite party is also equally liable for the deficiency in service.  In clause (7) of Ext.P1, it is stated that “Canara Bank is an IRDA licensed Corporate Agent (CA)” of 2^nd opposite party.  It is also specifically stated in clause (8) that, “contract of insurance is between the insurer and insured and not between CA and the insured”.  Hence 1^st opposite party cannot be held liable in this case as the contract of insurance is between insurer and the insured i.e., the complainant herein.  Complainant has not challenged the receipt of Ext.P2 query letter dated 20.9.2019, first reminder letter dated 5.10.2019 and final reminder letter dated 14.10.2019.  As per these, 2^nd opposite party demanded “treating doctor’s certificate regarding duration and history of the airway obstructive disease with first consultation”.  As the complainant did not comply with the repeated requests, 2^nd opposite party repudiated the reimbursement claim for Rs.12,637/- for treatment done at Holy Family Hospital.  Without furnishing documents requested, complainant cannot blame 2^nd opposite party.  Complainant produced a photocopy of letter dated 9.10.2019 of doctor of Holy Family Hospital stating that complainant was admitted on 16.8.2019 and treated for 3 days.  No evidence is adduced to prove that said certificate was furnished to 2^nd opposite party.  In the above circumstances, 2^nd opposite party is found to be not faulty for not honouring the claim.  As the only reason for repudiation of claim is non-production of certificate of doctor, we find it just and proper to issue a direction to 2^nd opposite party for considering the claim for Rs.12,637/- for the treatment done at Holy Family Hospital on furnishing of relevant certificate.

 

          Regarding the claim for ayurvedic treatment done at Vempilly Ayurveda Hospital, contentions of 2^nd opposite party is not sustainable.  2^nd  opposite party has relied on various judgments of Hon’ble Supreme Court.  There is no doubt that terms of contract should be strictly construed.  Contention of 2^nd opposite party is that, said hospital is neither NABH accredited nor having registration number.  Hence the claim is rejected.  On going through Ext.R1 policy schedule, it is seen that certain criteria were shown therein under “Ayush benefits”.  On a careful reading of the above, it is clear that it is not mandatory to have the hospital having NABH accreditation.  First criterion therein is that it must be a government hospital or any institute recognized by government and / or accredited by quality council of India or National Accreditation Board on Health (NABH).  Third criterion is Ayush hospitals having registration with a government authority under appropriate Act in the state/ UT and complied with minimum criteria shown therein.  From the hospital bill, it is seen that it is having GST registration.  Without taking licence from local authority and government departments, hospitals cannot function. A consumer is not in a position to enquire whether concerned hospital is having government / NABH recognition when he is in urgent need of                                                                                                                               (cont….7)

• 7  -

treatment.  Rulings relied on by 2^nd opposite party are not applicable to the facts of this case.  Insurer who, being dominant party dictates its own terms leaving it upon customer, either to take it or leave it.  Such contracts are obviously one side, grossly in favour of insurer due to weak bargaining power of consumer.  Concept of freedom of contract loses some significance in contract of insurance.  Such contracts demand very high degree of prudence, good faith, disclosure and notice on part of insurer.  Though contract of insurance is voluntary act on part of consumer, it is meant to cover any contingency that might happen in future.  It is categorically held by Hon’ble Supreme Court in recent judgment reported in IV (2022) CPJ 17 (SC) in Texco Marketing (P) Ltd. Vs. Tata AIG General Insurance Co. Ltd. and others.  Contention that complaint is liable to be rejected as present complaint need chief examination and cross and being summary process, it is not permissible for this Commission to try the case are unsustainable.  This Commission has ample power to take evidence on oath. These contentions are addressed, in blissful ignorance of Section 13(2)(b)(i) and Section 13(3) & (4) of the Act which confers powers upon this Fora  to take evidence, which would normally include examination of witnesses in chief and cross. So the contention does not survive      for considerations.  Besides, though 2^nd opposite party contended as above, no oral evidence is adduced by them or the complainant.  Another contention that this Commission has no jurisdiction to try and decide this complaint is also against law.  No specific reason is pointed out for that.  So above contentions are overruled.    Moreover, 2^nd opposite party have failed to prove that said hospital is not a government recognized one.  As they have failed to substantiate their contentions, repudiation of claim raising flimsy grounds is unsustainable in the eye of law.  Hence rejection of claim is found to be unsustainable.  Hence 2^nd opposite party is liable to reimburse the amount of treatment done at Vempilly Ayurveda Hospital.  In these circumstances, we find that there is deficiency in service on the part of 2^nd opposite party.  Point No.1 is answered as above. 

 

6.  Point No.2 :

 

          In the light of discussions and on findings on point No.1, we are of the considered view that complainant is entitled to the reliefs hereinafter stated, from 2^nd opposite party.  So, Point No.2 is answered accordingly.

 

7.  Point No.3 :

 

          On the basis of our findings on Point Nos.1 and 2, we reiterate that claim for Rs.12,637/- for treatment taken at Holy Family hospital shall be considered by 2^nd opposite party afresh upon production of relevant treatment records called for by it.  Hence claim for allowing Rs.12,637/- for treatment done at Holy Family hospital is presently declined.

 

In the result, complaint is allowed in part as follows :                                     (cont….8)

 

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1.  We direct 2^nd opposite party to pay to complainant an amount of Rs.27,512/- (Rupees Twentyseven thousand five hundred and twelve only) allowable under the policy for treatment done in Vempilly Ayurveda hospital.

 

2.  2^nd opposite party is directed to pay to complainant a compensation of Rs.5000/- (Rupees Five thousand only) towards deficiency in service on their part.

 

3.  Considering the facts and circumstances of the case, they are directed to pay litigation costs of Rs.3000/- (Rupees Three thousand only) to complainant.

 

          Amount allowed under clause 1 above should be paid within 45 days of receipt of a copy of this order, and that under clause 2 and 3 shall also be paid within 45 days of receipt of a copy of this order, failing which 2^nd opposite party is liable to pay simple interest at the rate of 8% per annum from the date of complaint, i.e., 6.3.2020, till full realization on treatment expenses allowed and in respect of compensation interest will accrue  after 45 days from the  date of receipt of this order. No interest is allowed on litigation costs.

 

          In the result, complaint is allowed in part as above.  

 

          Parties shall take back extra set of copies produced, without delay.

 

Pronounced by this Commission on this the  20^th  day of February, 2023

 

 

                                                                                                Sd/-

SRI. AMPADY K.S., MEMBER

 

                                                                                                Sd/-

   SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                             Sd/-

 SMT. ASAMOL P., MEMBER

 

 

 

 

 

 

 

                                                                                                                                   (cont….9)

 

• 9  -

 

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -  One page containing terms and conditions of policy

Ext.P2     -  Certificate of insurance – Group Assurance Health Plan of 2^nd opposite party.

Ext.P3    -   IP Bill No.007360 dated 2.10.2019 for Rs.25,305/- issued by Vempilli

                   Ayurveda Hospital, Muvattupuzha.

Ext.P4    -  Letter dated 9.10.2019 issued by Holy Family Hospital, Thodupuzha to

                  Manager, Appollo Munich (2^nd opposite party).

On the side of the Opposite Party :

Ext.R1  -  Certificate of insurance – Group Insurance plan (full set).

Ext.R2  -  Query letter dated 20.9.2019 and reminder letter dated 5.10.2019 and

                 14.10.2019 issued by 2^nd opposite party to complainant.

Ext.R3  -   Rejection letter dated 18.10.2019 and 24.1.2020 by 2^nd opposite party to

                 complainant.

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                  ASSISTANT REGISTRAR