Haryana

Ambala

CC/431/2017

Smt Saroj Bala - Complainant(s)

Versus

HDFC ERGO GEN INSS - Opp.Party(s)

Vishal Mittal

29 Nov 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

 

                                                          Complaint case no.        : 431 of 2017

                                                          Date of Institution         : 06.12.2017

                                                          Date of decision   : 29.11.2018

 

 

1.       Smt. Saroj Bala aged about 43 years wife of Late Shri Jaswinder Pal resident of House No.village Sajjan Majri, Tehsil Barara, District Ambala.

2.       Parul minor aged about 16 years daughter of Late Shri Jaswinder Pal and

3.       Ksihitiz minor aged about 13 years son of Late  Shri Jaswinder Pal, minors through Smt. Saroj Bala their real mother and natural guardian, residents of village Sajjan Majri, Tehsil Barara, District Ambala.

……. Complainants.

Vs.

 

1.       HDFC ERGO General Insurance Company Limited, SCO 124-125, Sector 8-C, Madhya Marg, Chandigarh-160008.

2.       HDFC Bank Limited, Nichalson Road, Ambala Cantt.

 

 ….….Opposite Parties.

 

Before:        Sh. D.N. Arora, President.

                    Dr. Sushma Garg, Member.

 

 

Present:       Sh. Vishal Mittal, counsel for the complainant.

                   Sh. Mohinder Bindal, counsel for the OP No. 1.

Sh. Kavinder Chawla, counsel for OP No.2.

 

ORDER:

 

Per Dr. Sushma Garg: The present complaint has been preferred by Complainant Saroj Bala, herself and on behalf of her minor children namely Parul (daughter) and Ksihitiz (son) against the Opposite parties for the release of  insurance claim in respect of the insurance policy, “Home Suraksha Plus” bearing No.2918200582475100000 obtained by her deceased husband Sh. Jaswinder Pal, during his life time from OP No.1 Insurance Company through OP No.2, Bank, which acted as agent of OP No.1. It is pleaded that the deceased -insured Jaswinder Pal had taken loan from  the O.P. No2, hence, the OP No2 compelled him to purchase the aforesaid policy. As per the policy schedule, the policy covered the insured, his home & its contents. It provided coverages against Fire & allied Perils, Burglary & theft, Major Medical illness & Procedures, Personal Accident and even loss of Job. The complainants in this complaint have claimed the sum assured along with interest and compensation in respect of the repudiation of the claim of coverage under “Major Medical Illness & Procedures”.

2.                 The relevant fact to mention here is that the insured Jaswinder Pal fell ill in the month of August 2015 and he was got admitted in PGIMER Chandigarh, wherein he remained admitted for the period from 30.8.2015 to 18.09.2015 and then from 17.10.2015 to 5.11.2015. His discharge summary from PGIMER mentions as under:

ACLF-III (Acute-on -Chronic Liver Failure)

Acute SBP(Spontaneous Bacterial Peritonitis ) ( Klebsiella pneumoniae)

ASH (DF: 68.8),

Chronic Alcohol related Cirrhosis,

Organ failure : two

Renal : improved

Liver.

Complications: Urosepsis: Klebsiella Pneumonia

Surgical Procedures: HAP (resolved)”

 

 3.      He, however died because of the above disease on 9.11.2015. Since the insured was covered for a sum assured of Rs. 1184368/- for “Major Medical Illness and Procedures” with the OP NO.1, hence the complainants, being the legal and natural heirs of the Deceased insured, approached the Ops for the release of the sum insured.

4.       However, the OP NO.1 repudiated the claim on the ground that since the illness diagnosed included ‘Chronic Alcohol related Cirrhosis” and since the liver illness  was not covered in the list of major illness covered, and further the alcohol related liver illness, otherwise, was excluded as per policy terms and conditions,  hence, the complainants were not entitled to the insurance claim.

5.       Being aggrieved by the above repudiation of claim, the complainants have approached us with this complaint alleging deficiency and unfair trade practice on the part of the OPs, with a prayer for directing the Opposite parties to pay the sum insured of Rs. 11,84,368/- along with interest @ 18% p.a. and further to pay compensation amount of Rs. 1 lakh to the complainants on account of mental agony and harassment. Litigation expenses have also been claimed.

6.                Notice of the complaint was issued to the Opposite parties, whereupon they have filed their separate replies.

7.                 The opposite Party No.1(in short OP No.1) in its reply has reiterated that firstly the Liver related illness was not covered under the policy and secondly that any ailment encountered as a result of use/misuse of intoxicating substance/ Alcohol was specifically excluded from coverage as per the terms and conditions of the policy document supplied with the policy. Hence, the claim was rightly rejected.

8.                However, the opposite party No.2 (in short OP NO.2), Bank, though, has admitted that it acted as an agent of OP NO.1 for the issuance of the above insurance policy, however it has been denied that the insured was compelled to purchase the policy. Rest of the averments of the complaint have been simply denied by OP No.2.

9.                To prove their version complainants tendered their affidavit as Annexure C-A along with documents as annexure C-1 to C-78 and close their evidence. On the other hand, counsel for the OP No.1 has tendered as Annexure R-1 to R-3 and affidavit as Annexure R-A and close their evidence.  Counsel for the OP No.2 has also tendered affidavit as Annexure RW-2 and close their evidence

10.              We have considered the rival contentions and also gone through the record. The admitted fact on the file is that the deceased-insured Jaswinder Pal was covered for coverage under “ Major Medical illness & Procedures” and that he had died during the subsistence of the  policy. Now the question before us is whether any or all of the above mentioned illnesses/ailments for which the insured was diagnosed of were covered under the policy and whether the said ailments/illness or any of them was result of use/misuse of alcohol, if yes, whether the same was excluded from the coverage as per the terms and conditions of the policy? Then, the question arises as to   whether the said terms and conditions were made aware to the deceased-insured and whether the same can be said to be binding upon the insured and the claimants?

11.              To arrive at an appropriate conclusion, we think it appropriate to firstly examine the policy schedule in question. The complainant has relied upon the Policy schedule C2 which was sent to the deceased/insured along with covering letter C1. Whereas, the O.P. No.1 has placed the copy of the  Policy Schedule as R2.

12.              A careful perusal of both the documents reveals that both these policy schedules are not identical. There is a remarkable difference between C2 and R2. In the policy schedule R2 relied upon by the OP No.1, there is mention of following nine specific ailments/illness covered under the policy:

1.         Cancer,

2.       End stage renal failure,

3.       Multiple Sclerosis

4.       Major Organ Transplant

5.       Heart Valve Replacement

6.       Coronary Artery Bye-pass Graft

7.       Stroke

8.       Paralysis

9.       Myocardial infarction.

 

Further, it has been mentioned as under: 

“ In the policy wordings, the list of major medical illness and procedures enlisted under section III has 18 illness and procedures. However, please note that the coverage provided to you under this policy is restricted only to the above mentioned 9 major medical illnesses and procedures.”

Further, in the end of the policy schedule R2, it has been mentioned as under:

“The policy wording attached herewith included all the standard coverage offered by the company to its customers. Your entitlement for coverage/benefits shall be restricted to the coverage/benefits as mentioned in the policy schedule.  …..”

 

13.               However, a perusal of the policy schedule C2 placed on the file by the complainants when read with the covering letter, as reproduced above, reveals that no such list of illnesses is mentioned in that schedule, though, the policy schedule number is the same which is 2918200582475100000.

14.              Even, no such note regarding the attachment of any “ policy wording”  with the policy schedule has been mentioned in the Policy schedule C2, which has been supplied to the insured. Even in the covering letter C1 there is only mention that the policy is attached herewith, however there is no mention of attaching along with any terms and conditions containing any exclusion clauses. 

15.              Even the policy issuing office of policy schedule C2 is mentioned as Mumbai, whereas the address of the Chandigarh Branch of OP No.1 is mentioned in R2. Further the signatory/issuing authority of both the policy schedule are different persons.  Further the column “Place of supply” is left blank in the R2, whereas no such column exists in C2.

16.              Now coming to the   terms and conditions mentioned in the policy document relied upon by the O.P.No.1, which document allegedly was supplied/sent with the alleged policy schedule R2 to the insured, the relevant part of the same is reproduced as under:  

“Section  3. Major Medical Illness & Procedures

Insured event for the purposes of this Section and the determination of the company’s liability under it , the insured event in relation to the insured, shall mean  any illness, medical event or surgical procedure specifically defined below whose signs or symptoms first commence more than 90 days  after  the commencement of period of insurance and shall only include:

1. Fist Diagnosis of the below-mentioned illnesses more specifically described below:-

1. Cancer
2. End Stage Renal Failure.
3. Multiple Sclerosis or
4. Benign Brain Tomar
5. Parkinson’s Disease before the age of 50 years
6. Alzheimer’s Disease before the age of 50 years
7. End Stage Liver Disease

 

2.  Undergoing for the first time of the following surgical procedures, more specifically described below:-

1. Major Organ Transplant
2. Heart Valve Replacement
3. Coronary Artery Bypass Graft
4. Surgery of Aorta

C.  Occurrence for the first time of the following medical events more specifically described below:

1.   Stroke

2.   Paralysis

3.   Myocardial Infraction

4.   Major Burns

5.   Loss of Speech

6.   Deafness

7.   Coma

 

Kidney Failure Requiring Regular Dialysis:

End stage renal disease presenting as chronic irreversible failure of both kidneys to function, as a result of which either regular renal dialysis (haemodialysis or peritoneal dialysis) is instituted or renal transplantation is carried out. Diagnosis must be confirmed by a specialist Medical Practitioner.

 

End Stage Liver Disease:

End stage liver disease resulting in cirrhosis and evidenced by all of the following criteria: a) permanent jaundice b) ascites  c)encephalopathy, d) portal hypertension.

Liver disease secondary to alcohol or drug misuse is excluded.

 

 

1. Benefit Payable Under Section 3

The company hereby agrees, subject to the terms, conditions and exclusions applicable to this Section and the terms, conditions, General Exclusions stated in this Policy,  to pay the sum insured in relation to the insured as stated against  Section 3 under the Schedule on the occurrence of an insured event as stated above, under this Section.

 

2. Specific Conditions applicable to Section 3

The cover under this Policy for the specific insured, shall terminate in the event of claim in respect of such insured becoming admissible  and accepted by the company under this Section. In consequence thereof no benefit shall be  payable under any other section of this policy.”

 

17.              Now the question is whether both or one of these and if so, which one of the above two policy schedules was supplied to the insured?

As is evident, there is no doubt that the Policy schedule C2 along with covering letter C1 was sent by the OP No.1 to the insured, which fact otherwise, has not been disputed  by the OPs.

18.              However, there is no reliable evidence placed on the file by the OPs that policy schedule R2 along with “Policy wording”/ terms and conditions was ever supplied to the insured. Even the OP no. 1 has also not produced on the file any postal receipt/acknowledgement or any other document to prove that the policy schedule R2 and the alleged policy wording/terms and conditions were ever supplied to the insured or he was made aware of or the same were ever read over to him. Even the column regarding the place of supply of the document as mentioned in the R2 has been left blank. Even the agent i.e. OP No. 2 Bank, has not mentioned in its reply that any of the exclusion clauses, as relied upon by OP NO.1 were ever brought to the knowledge of the insured at the time of signing/obtaining the proposal form or any time thereafter. There is nothing mentioned in the reply of the OP No. 2 that they have ever supplied or brought to the knowledge of the insured any alleged terms and conditions of the policy.

 19.             At this stage, a very relevant question which strikes our mind is as to ‘why two different policy schedule  documents were prepared by the OP No.1 for the same policy number?

 Moreover, such policy schedule documents are generally standardized documents with standard Performa, then why the exclusion clauses/illness to which the coverage was restricted to, were mentioned on one of the document and not on the other. A specific question was asked in this respect to the counsel for the Op No.1 on the previous date of hearing and he sought time for getting instructions from his client in this respect.

20.              On the next date i.e. on 20.11.2018, surprisingly, the counsel for the O.P. No.1, has produced another booklet of terms and conditions and tendered the same as Annexure R/A and made a statement that the said terms and conditions were relating to the policy schedule C2 which has been produced by the complainants, and that the same were supplied to the complainant. May be the counsel in his statement has meant as 'insured’ instead of ‘’complainant’ as supplying any terms and conditions to the complainants who are legal heirs of the deceased insured does not bind them with any of the clause of such terms and conditions.

21.              This act of O.P. No.1 of producing new terms and conditions, when the counsel was confronted with the discrepancies and mutually different clauses mentioned in the policy R2 as compared to C2, is very shocking , which means, the O.P. No.1 till date was wrongly relying upon the Policy Schedule R2 along with its terms and conditions before this forum. This is nothing less than playing fraud not only with the complainant but also with this forum. By the above written statement recorded by the counsel for the O.P. No.1, the O.P. No.1 has not only admitted that in fact the policy schedule C2 was supplied to the insured and not R2. However, as noted above, in the policy schedule C2, there is neither any exclusion clause mentioned nor the claim is restricted to any particular disease.  Even at the cost of repetition, we deem it fit to mention here there is no mention either in the covering letter C1 or policy schedule C2 that any such terms and conditions were attached or supplied to the insured along with. Hence at this stage even by producing any new booklet of terms and conditions, it does not make any improvement in the case of the O.P. No.1, rather it goes in favour of the complainant as the O.P. No1 , itself, is not sure as to on which of the two booklets of terms and conditions tendered by it, the OP No1 wants to rely upon, what to say of any evidence of sending of any of the same to the insured. Under such circumstances, it is evident that the O.P. No.1 is adopting unethical practices to deny the claim of the complainants. Hence, not only the Policy schedule R2 but also the alleged terms R/A relied upon by the OPNO.1, seems to be an after thought planning to deny the claim to the complainants.

22.              Under the circumstances, it is the policy schedule C2, to which even the OP No.1 has admitted to have been supplied to the insured, is the relevant document which is to be read into to decide as to whether any exclusion clause as alleged by the OP No.1 is attracted or not. As discussed above, there is neither any clause mentioned in the C2, which restricts the coverage to any specific illness/illnesses nor there is any mention that any alleged terms and conditions/policy wording containing exclusion clauses were ever sent with the policy schedule. Hence under the circumstances, neither the claim can be denied on the ground that liver disease was not covered nor on the ground that any alleged exclusion clause is attracted in this case, for which there is no reliable evidence placed that the same was ever supplied to the insured or ever brought to his knowledge.

23.              Even otherwise, this does not seem to be a case of any suppression or concealment of any fact on the part of the insured regarding suffering of any major illness. The policy was obtained in the  year 2013 valid from 21.09.2013, however the insured died on 09.11.2015 i.e. after a gap of almost two years. There is no evidence or record that the insured at that time or even thereafter, till his illness was diagnosed at PGIMER in the month of August 2015, was chronically ill or was taking treatment for any major illness. Hence, under the circumstances, it can not be said that the insured had anticipated his death after 2 years at the time of taking the policy. Hence, there does not seem any malafide on the part of the insured at the time of taking the policy.

24.              Now there is another factor in this case also. In the case in hand, as per the medical records placed on the file, the insured was not only suffering from alcoholic liver disease, but as noted above, he was also diagnosed and treated for renal failure and also for Pneumonia .

                   Even, as per not only under the policy schedule R2 and its terms and conditions but also under the newly tendered terms and conditions R/A which have been   relied by the OP No.1, the ‘End stage renal failure’  is specifically  covered. As per the medical record, there were two organ failures i.e. Renal and liver. Even a perusal of the alleged both the policy terms and conditions relied upon by the OP No.1, there isn’t any alcohol related exclusion clause mentioned in relation to the detection of end stage renal failure. Such alcohol related illness is found mentioned only in relation to the liver disease in the terms and conditions attached with R2 regarding which the O.P.No.1 has miserably failed to prove that the same was ever supplied to the insured.  Hence even otherwise, the said illness of renal failure is covered specifically in the policy schedule R2 as well as terms and conditions R/A relied upon now by the O.P. No.1 which is not hit by any alcohol related exclusion clause. The OP No.1, therefore, otherwise is liable to honour the insurance claim.

25.                        At this stage, the counsel for the O.P. NO.1 has submitted that in case of Renal failure, the comments written are “improved’ in the discharge summary. This fact, in our view, proves that the insured was diagnosed with Renal Failure, and after treatment, perhaps it was improved but not cured or recovered. However, the fact on the file is that the insured died within 4-5 days of discharge from the hospital.

26.              Now ,coming to the question  as to what is the effect on the insurance claim of any treatment taken  by the insured after diagnosis of the above stated major illness and  as to what amount is payable to the claimants, whether it is the actual expenses incurred on the treatment or the sum assured?

                   The policy in question, admittedly, is not a Mediclaim policy, rather it is a composite policy covering many aspects including burglary, theft, personal accident and even loss of job. Since, we here are concerned with the claim under major illness,  a perusal of the terms and conditions relating to major illness as mentioned under section 3 of the alleged document relied upon by the OP no.1, itself ,which is binding on  OP No.1, reveals that under the Heading “ Benefits payable under Section 3” as reproduced above , the sum insured is payable on the occurrence of an insured event, which event as mentioned in section 3  is the “ first diagnosis “ of the major illnesses mentioned.  Hence, on the first diagnosis of any of the major illness to the insured, the insurance company is liable to pay the sum assured, irrespective of any expenditure incurred or not, for the treatment of the said major illness. Moreover, neither OP NO.1 nor OP NO.2 in their respective reply has pleaded that alternatively, the complainants are entitled to the actual expenses spent. In the absence of any such plea by the Ops and in the light of the conditions relied upon by the Ops, which otherwise are binding upon the Ops, the OP No.1 is liable to pay to the complainants the sum assured.

27.              In view of the above discussion, the present complaint is allowed. The Op No.1 is directed to pay to the complainants the sum assured i.e. 11,84,368/- along with interest @ 9% from the date of repudiation letter i.e. 8.12.2015 till realization. The OP no.1 is also directed to pay a sum of Rs. 11,000/- as litigation expenses to the complainants. The awarded amount be paid in equal shares to the complainants. The share amount of the minors be kept in FDRs in a nationalized Bank payable to them on attaining the age of majority, except with the permission of a court of competent jurisdiction. The orders be complied with within 30 days of the date of receipt of the copy of the order. However, the complaint against OP NO.2 is dismissed. File be consigned to the record room after due compliance.

Announced on :29.11.2018    

 

                  

 

 

 

                    (SUSHMA GARG)                  (D.N. ARORA)

                             Member                            President