Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.148/2014
Suresh Kumar Garg, 10234, Manak Pura,
Karol Bagh, New Delhi-110005 ...Complainant
Versus
OP1: Capital Insurance Brokers Pvt. Ltd.
2027/7, 3rd Floor, Chuna Mandi, Pahar Ganj,
New Delhi-110055
OP2: The New India Insurance Company Ltd. A-2/3,
Lusa Tower, Azadpur, Delhi-110033 ...Opposite Parties Date of filing: 21.04.2014
Date of Order: 15.06.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction and Background): What happened, the complainant/Insured had taken medical insurance policy and during the validity of insurance policy, complainant’s wife was treated of stone, she remained indoor patient and medical hospitalization bill was of Rs.53,900/- besides other medicine charges of Rs.453/. However, an amount of Rs. 26,177/- was reimbursed and remaining amount was declined. The complaint is filed for that remaining amount.
Whereas, OP2/Insurer justifies that permissible amount of Rs. 26,177/- was allowed within the terms, conditions and parameters of insurance policy since parties are bound by terms and conditions of policy.
1.2. The complainant files his pleading in Hindi language (Devnagri lipi) inclusive of evidence and final arguments but on the other side the pleadings, evidence and arguments are in English language.
1.3. Earlier complaint was dismissed by final order dated 30.11.2015, however, complainant preferred F.A. no. 615/2015 before Hon’ble State Commission.The Hon’ble State Commission by order dated 20.07.2018 set aside the impugned order dated 30.11.2015 by remanding the matter back.
The matter was resumed again. However, the original file was not traceable consequently Ld. Predecessors got reconstructed the file with the assistance of both the parties.
1.4. After final arguments in the matter, the parties were given date of today/15.6.2023 for Final Order.
But during reading of the file, a serial number was discovered written at margin of file. It was appearing to be the disposal entry index number. When further efforts were made again, the same were successful and the original record has been located and traced. Then, record was compared with the restructured file, later also contains similar record made available by the parties. Thus, present final order is being written on the basis of all material available. Both the files will remain together, since subsequent to remand of case, all the proceedings were written regularly in the reconstructed file.
2. (Case of complainant): The complainant has been regularly subscribing Family Mediclaim/Health Policy from OP2 since 2005. The latest policy bears no. 32010034132500000515 valid from 30.10.2013 to 29.10.2014. On 03.09.2013 complainant’s wife Smt. Veena Garg had stomach pain, she was taken to the nearest doctor, who suspected stone on examination, he advised ultrasound and in ultrasound it was discovered small stone. She was advised treatment. On 24.11.2013 she was taken to Hiteshi Medical and Maternity Centre, Rohini, Sector-8 Rohini, her treatment was started on 24.11.2013, information was also given to TPA on email on 25.11.2013. She remained hospitalized from 24.11.2013 to 26.11.2013. The total expenses were Rs 53,900/- and later other expenses were of Rs. 453/-, which were sent/lodged to the insurer/OP2. The complainant keep on in touch with TPA helpline, it was informed that the claim is in process.
After much persuasion, a claim of Rs. 26,177/- was allowed and remaining amount was deducted without reference to any reason or rules. That is why the complaint.
3.1 (Case of OP1): It is a compact reply, briefly, that complaint against OP1 is not maintainable since OP1 is an agent of OP2, its duty is to sell the policy being a link between the insurance company and the customer.
3.2 (Case of OP2): OP2/Insurer/New India Assurance Co. filed its detailed reply, however, the reply/written statement is without the signature of any officer or representative of OP2, written statement is also not supported by any affidavit. However, written statement bears the signature of Advocate but as OP2 through Advocate for OP2.
The complaint is opposed that neither there is any deficiency of services on the part of OP2 when claim of Rs. 26,177/- was settled as per terms and conditions of policy no. 32010034132500000515. After receipt of claim papers, immediately the TPA perused them and promptly settled the admissible amount of Rs. 26,177/-, which was also explained to the complainant vide TPA letter dated 06.01.2014 since the claim has been rightly settled, there is no deficiency on the part of OP2. The complaint is frivolous, unjustified and it is contrary to the provisions of law.
Moreover, the insurance policy is a contract and its terms and conditions are binding like terms and conditions of other general contract. The terms and conditions of the contract are to be read as it is without any external aid. The parties to the contract are bound by terms and conditions of policy, therefore, the amount was settled in terms of the insurance contract. The OP2 fortifies these contentions, while giving reference of United India Insurance Co. Ltd. vs Harchand Rai Chandan Lal, 2005 ACJ 570; National Insurance Co. vs Anjana Shyam, 2007 ACJ 2129; New India vs Kamla, 2002 ACC 346; Oriental Insurance vs Prithvi Raj, 2008 ACJ 733 and Suraj Mal Ram Niwas Oil Mills Ltd. vs United India Insurance Co. Ltd., 2011 ACJ 418. Accordingly, the policy is to be construed as per literal meaning, terms and conditions of the insurance contract. The claim was rightly settled for Rs. 26,177/- as permissible under the policy. The complaint is liable to be dismissed. The OP1 files copies of insurance policy (page 1), copy o letter of amount allowed and terms and conditions of policy.
4. The complainant filed his rejoinder-cum-evidence, while reaffirming the complaint as correct, leading the record as documentary evidence. In addition, the written statement/plea of OP2 is opposed being baseless and in fact the OP has violated the terms and conditions of the policy. In addition, the OP2 has violated Regulation 2(1)(d), 3(1), 3(2), 4(1), 7(1)(j), 7(2), 11(1) and 11(4) of IRDA (Protection of Policyholders' Interest) Regulation 2002 since OP2 was required to furnish terms and conditions of policy, copy of proposal form to the insured that too within 30 days and to apprise the insured from time to time about the progress of claims of insured.
Moreover, the OP2 (as per terms and conditions furnished with its reply), has violated clause 2.1 of its own terms and conditions that 1% of the sum insured is kept as room rent but correspondingly OP2 has reduced other claims of the complainant, even rent was also not allowed as per this condition, accordingly other claim amount is also reduced in violation of own policy terms.
5.1. The complainant has led evidence by filing it as his replication cum evidence/affidavit with prayer of refund of balance medical claim of Rs. 28,176/-, interest @ 20%, costs and other expenses of Rs. 10,000/- besides damages, while reflecting his entire case supplementing with copy of insurance policy (without terms and conditions as it was not received), detail of previous policy with period and premium paid, detail of current claim bills, letter of request for settlement of claim, the Regulations 2002, medi-claim insurance proposal form (specimen), reply received of email sent, when information was sought about deduction.
5.2. On the other side, OP2 led evidence by filing affidavit of its Senior Divisional Manager, it is brief affidavit being extract from the written statement. However, no evidence is filed/led by OP1.
6. The complainant as well as OP2 filed their respective written arguments, they have reiterated their case as mentioned in the pleadings and evidence.
The parties were also given opportunities to make oral submission, therefore, the complainant himself presented the submissions. Whereas on the other side, OP1 appeared personally and made brief submissions as mentioned in the reply. Sh. Prakash Chand Sharma, Advocate with the consent with written authority of Sh. Abhinav Jain, Advocate for OP2 made the final submissions.
The contentions of the parties need not to be repeated here as the same will be referred appropriately. During the course of arguments the complainant has referred the Oriental Insurance co Ltd Vs Dr Mahinder Singh [Appeal no.08/307 dod 19.05.2008 by Hon’ble State Commission], it is regarding pre-existing disease, however, the same is not related with issue involved. The case law presented by complainant is distinguishable from the issues involved in this case. Some other literature from the website is also referred by the complainant and in this literature, there is reference of Regulations 2002, which has already been mentioned.
7.1 The rival contentions of both the sides are considered, keeping in view the material on record.
It is settled law that pleading (i.e. either the complaint or the written statement/reply) should be signed by the party concerned and by the counsel, if any. Whereas, the written statement filed on behalf of OP2/ New India Assurance Co. Ltd. is not signed by OP2 either through its Manager or Senior Divisional Manager or Divisional Manager, therefore, it is contrary to the law of pleading. The signature of counsel for party, is not substitute in place of signature of party. Thus, it is no reply/written statement in the eyes of law. However, the legal issues may be considered and accordingly it is being proceeded with.
7.2. There is no dispute of issue of policy, its tenure, payment of premium as well as lodging of the claim by the complainant. The issue is that partly claim of Rs. 26,177/- was considered but partly claim for Rs.28,176/- was not reimbursed. The OP2 relies upon the terms and conditions of policy but complainant denies them as terms and conditions were not supplied by the OP2. Further, according to OP2 the permissible limit of room rent is 1% of sum insured but the complainant had opted room for higher rent, that is why the amounts was restricted to Rs. 1,000/- per day and other expenses were considered proportionately on the basis of 1% of sum insured. But claimant counters the submissions, the sum insured was Rs. 2,00,000/- for Smt. Veena Garg and 1% of Rs. 2,00,000/- comes to Rs.2,000/-per day room rent, whereas OP2 restricted rent of room of Rs. 1,000/- per day and other expenses were reduced, which are on the face of it contrary to its own documents.
7.3.1 By discussing the rival stand in para no. 7.2 above, it narrow downs the scope of controversy. Thus, record is to be assessed to determine them.
7.3.2. The complainant has filed insurance medi-claim 2012 schedule supplied to him by insurer, the last policy is of 30.10.2013 to 29.10.2014 [3 pages] and similarly the OP2 has also filed insurance policy (one page), separate terms and conditions of medi-claim policy 2007. The policy schedule issued to complainant, does not depict/contain any such terms and condition of policy nor terms and condition were mentioned in that policy. Moreover, the terms and conditions as filed by OP2 is also not part of policy.
Otherwise, OP2's stand is that complainant may obtain terms and conditions of policy by requesting the company or by visiting office or otherwise on web-site but the complainant cannot take shelter of ignorance to the terms and conditions of the policy.
However, it would not fulfill vacuum in contract entered, like to issue insurance policy first and remaining things are to be ascertained by visiting the office or web-site. When terms and conditions are settled, then policy contract is entered, which happens by furnishing proposal form and its acceptance with insurance premium. The Insurer is also bound to disclose all terms and conditions insurance.
In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
The complainant has established that he was not made aware by OP2 about the terms and condition of policy at any point of time either at the time of proposal form or at the inception of first insurance policy cover or at any subsequent stage till subject renewed policy of 2013-14. When the terms and conditions are not made known to complainant, how it can be construed that parties have agreed upon it or to act upon them. It is also deficiency of service as well as unfair trade practice on the part of OP2 by not providing complete insurance policy with terms and conditions. The complainant cannot be bound for what he was not agreed or made him known of the terms and conditions to be agreed upon. On the other side OP2 could not establish that it had served the policy with terms and condition of policy.
7.4. The reduction of amount on all counts is unilateral on the part of OP2 since those terms or conditions were not known to the complainant for want of providing the terms and conditions. Moreover, the complainant was provided insurance policy, which are just three pages and the same have been filed with the complaint, nowhere it is mentioned that the policy does not end at the last/third page, which is duly under-seal of OP2 but it continue for further pages or terms and conditions are separately attached.
Simultaneously, the OP2 has filed terms and conditions of policy, the page no.1 is of medi-claim policy 2007. The terms and conditions begins at page 1 and it is not in continuation of earlier page of policy, had the terms and conditions were part and parcel of policy, the page number of terms and conditions would have been page no. 4 (when policy is of three pages, as policy of three pages were provided to complainant).. Therefore, there is no justification in the plea of OP2 that the terms and conditions were part of the insurance policy. Accordingly, the material issues stand disposed off while holding that when terms and conditions were not supplied or entered into contract, the OP2 cannot bind the complainant thereto.
7.5. As appearing from the record, pleading and evidence of parties that the complainant had furnished all documentary record of bills etc., to the OP2 for settlement of claim, it is not disputed by the OPs. To say, the record of bill etc. are not filed in this complaint by either of the parties. Would it prejudice the case of complainant? The answer is in negative, since the claim and bills lodged are not disputed, the entire record of bills are with the OP2. However, the is issue of amount not reimbursed is disputed.
7.6 In view of the aforementioned conclusions, particularly the sum insured for Smt. Veena Garg is Rs. 2,00,000/- and then rent of room is 1% of sum insured, [as per terms and conditions filed on record of this complaint by OP2], even then the claim was wrongly assessed and allowed for Rs. 1,000/- per day rent of room. It also infers that other proportionate amounts were also wrongly assessed/reduced proportionately on the basis of rent of room of Rs.1000/- by OP2.
Consequently, the complainant has established his case of deficiency of service as well as unfair trade practice against OP2 as on the face of record it is manifest that the claim was wrongly assessed despite clear unilateral terms and conditions available with OP2, which the complainant was deprived to assess them. Therefore, it is held that complainant is entitled for reimbursement of remaining amount of Rs. 28,176/- (i.e. Rs. 27,723/- + Rs. 453/-) in respect of hospitalization expenses and other medical expenses.
7.7. The complainant had paid the amount from his pocket, had it been reimbursed, he would not have been deprived of his money. In addition, there is no concrete evidence of rate of interest of 20% pa as claimed by complainant but it would serve both ends if interest at the rate of 7 % pa is determined. Accordingly, interest at the rate of 7% pa from the date of complaint till realization of the amount is determined in favour of complainant and against the OP2.
7.8. As already stated that complainant himself is prosecuting the complaint, he has made a prayer for refund of amount with interest along with compensation, which were specified/quantified as claim amount of Rs. 28,176/-, cost of Rs. 10,000/- and compensation (it was not quantified). Besides he also seeks general directions to OP2 to issue terms and conditions with the policy.
By taking into account all the circumstances, especially the relief of refund of medical claim is allowed, the complainant is held entitled for compensation since he had to pursue a lot even for the amount allowed. He was not provided terms and conditions of policy. The complainant has filed the details reduction of amount when asked and furnished by OP2, however, amount of reductions are specified by on what basis, the terms and conditions are to be seen, which were not mentioned in that reply nor provided to complainant otherwise. Since, the complainant has not quantified the compensation amount, therefore, it is quantified as Rs. 5,000/- in his favour and against the OP2. Cost of Rs. 5,000/- are also allowed in his favour.
7.9. The complainant seeks general directions to OP2 about furnishing the terms and condition of policy with the insurance policy, whereas there are already Regulations to this effect, therefore, OP2 has to comply those directions, no separate directions are required.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP2 to pay balance medical expenses/amount of Rs. 28,176/- along-with interest @7% pa from the date of complaint till realisation of amount, damages/compensation of Rs.5,000/- apart from costs of Rs. 5,000/-. OP2 is also directed to pay the amount within 30 days from the date of receipt of this order.
In case amount is not paid within 30 days from the date of receipt of order, the OP2 will be liable to pay interest at the rate of 9% per annum on amount of Rs 28,176/- from the date of filing of complaint till its realization.
No order against OP1, who is an agent of OP2 (Principal) with regard to balance amount medical bills and compensation since Principal/OP2 is already held liable to pay the amount; complaint against OP1 is dismissed.
9. Announced on this 15th June 2023 [ज्येष्ठ 25, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
