DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 196 of 11-05-2011

Decided on : 28-10-2011

Smt. Jatinder Kaur W/o S. Nirmal Preet Singh R/o A-3 House-Fed Complex, Opposite Milk Plant, Dabwali Road, Bathinda.

.... Complainant

Versus

1. HDFC – ERGO General Insurance Company Limited, 6^th Floor, Leela Business Park, Ahdheri Kurla Road, Ahdheri (East), Mumbai 400 020.

2. Branch Manager, HDFC Bank, 3027-B, Guru Kashi Marg, Near Bus Stand, Bathinda.

..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Smt. Vikramjit Kaur Soni, President

Smt. Sukhwinder Kaur, Member

For the Complainant : Sh. Balbir Singh, counsel for the complainant

For the Opposite parties : Sh. Varun Gupta, counsel for opposite party No. 1.

Sh. Vinod Garg, counsel for opposite party No. 2.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that she is holding Health Suraksha Policy No. 50170711 valid from 5-3-2010 to 4-3-2011 of opposite party No. 1 through opposite party No. 2. The complainant developed problem of her Uterus on 10-10-2010 and firstly consulted Dr. Mrs. T Bhatty and Dr. Arvind Sharma at Bathinda. Thereafter she got removed her Uterus due to multiple Fibroids/Hysterectomy from Dr. B S Bal at Bal Nursing Home & Hospital, Ludhiana. She was hospitalized from 13-11-2010 to 18-11-2010 and later on remained under post hospitalization treatment from 18-11-2010 to 1-12-2010 at Ludhiana. She came back to Bathinda and was under post hospitalization treatment of Dr. Mandeep Chitkara at Bathinda from 1-12-2010 to 25-12-2010. On 26-12-2010, the complainant submitted her claim of said treatment amounting to Rs. 32,936/- under the said insurance policy to the opposite parties alongwith required documents. The opposite parties repudiated the claim of the complainant 'due to delayed submission' vide their letter dated 4-2-2011. The complainant alleged that the said repudiation is illegal and against facts on the ground that no terms and conditions were supplied to her; the opposite party has not taken into consideration the period that the complainant had spent on post hospitalization treatment from 18-11-2010 to 25-12-2010; there was not a single day's delay on the part of claimant in submission of her claim as her post hospitalization treatment was completed on 25-12-2010 and she had submitted her claim to opposite party on 25-12-2010. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to pay the claim amount of Rs. 32,936/- to her alongwith compensation and cost.

2. The opposite party No. 1 filed its written reply and admitted that complainant got Health Suraksha Policy No. 50170711 from it. It has been pleaded that the terms and conditions of the policy were duly supplied to the complainant at the time of purchasing the policy. The complainant had problem of her uterus much prior to the purchase of the policy but she did not disclose this fact to opposite party No. 1 at the time of purchase of policy. The uterus problem cannot be developed within a day or two. As per medical record, the complainant remained under treatment upto 01-12-2010. According to clause 7(f) of the terms and conditions of the policy, 'the insured person shall provide us with any documentation and information, we or our TPA may request to establish the circumstances of the claim, its quantum or our liability for the claim within 15 days of the earlier of our request or the insured person's discharge from hospitalization or completion of treatment.' The claim dated 26-12-2010 of the complainant was received in the office of opposite party No. 1 on 8-1-2011 and while submitting the claim, the complainant did not disclose the treatment taken by her from Dr. Mandeep Chitkara at Bathinda from 01-12-2010 to 25-12-2010. The treatment of Dr. Mandeep Chitkara has been created by the complainant later on. The complainant has not disclosed why she got treatment from Dr. Mandeep Chitkara when she was already operated by Dr. B S Bal of Ludhiana. It is a known fact that every operating hospital directs the patients to follow its treatment and not of any other doctor. The complainant was checked up by Dr. B S Bal on 14-11-2010 and he opined that the complainant has fully cured, thus the contention of the complainant that she remained under treatment of Dr. Mandeep Chitkara was totally wrong and created one. The claim of the complainant was processed and repudiated by opposite party No. 1 after going through the documents submitted by her and terms and condition of the policy and it was observed that the claim has been submitted after the time specified in the terms and conditions of the policy. Hence, the claim of the complainant has been rightly repudiated vide letter dated 4-2-2011.

3. The opposite party No. 2 filed separate written reply and admitted that the policy was obtained by the complainant by making payment through his HDFC credit card # 4346781102227980. It has been pleaded that opposite party No. 2 relies on the terms and conditions mentioned in the Card member Agreement regarding Claims processing wherein the condition is mentioned that : “The insured person shall get in touch with the Insurance Company directly in case of claims and shall not involve HDFC Bank in any manner whatsoever. The Bank does not hold out any assurances and does not make any representation on claims being processed or whatever other matter connected with the insurance – the full responsibility of which will be that of the Insurance Company offering the services through a tie-up with HDFC Bank. The Insurance Company according to its own rules and regulations settled the claim after obtaining adequate proof to substantiate the claim. The opposite party No. 2 is not liable for any loss/damage/claim/liability that may arise out of any act or omission of the service provider with whom the bank has a tie-up.

4. Parties have led their evidence in support of their respective pleadings.

5. Arguments heard. Record alongwith written submissions submitted by the parties perused.

6. These are undisputed facts between the parties that complainant is holder of Health Suraksha Policy No. 50170711 of opposite party No. 1 through opposite party No. 2 through HDFC Credit Card # 4346781102227980. The complainant developed problem of her uterus and she got it removed at Bal Nursing Home & Hospital, Ludhiana. She filed claim with opposite party No. 1 which was repudiated by it.

7. The learned counsel for the complainant submitted that opposite party No. 1 has repudiated the claim of the complainant due to late submission of claim whereas there is no delay in submission of claim. The complainant was admitted in Bal Nursing Home & Hospital, Ludhiana on 13-11-2010, operated on 14-11-2010 and discharged from the hospital on 18-11-2010. She remained under Dr. Bal's post hospitalization treatment upto 1-12-2010. It is a common knowledge that after a major operation, the wound and stitches take time to heal and a period of quarter and a month is normal in such a case especially when the stitches of the complainant had developed abscess. Dr. Chitkara at Bathinda treated the complainant for Abscess of stitches after consulting Dr. Bal at Ludhiana on phone who advised her that it was a minor problem and could be handled at Bathinda without extra cost, travel & inconvenience to the patient and in case, the wound does not heal in a fortnight or so at Bathinda, the patient could approach Dr. Bal at Ludhiana. He submitted that after receiving payment of premium through credit card of the complainant, opposite party No. 1 sent to her address only three papers i.e. Ex. C-1 as policy documents. Thus, non-communicated, unexplained and unnoticed clause 7(f) of the terms and conditions of the policy, under which the opposite party No. 1 has repudiated the claim of the complainant, is not binding on the insured and cannot be enforced against the complainant.

8. On the other hand the submission of the learned counsel for opposite party No. 1 is that according to clause 7(f) of the terms and conditions of the policy, the claim of the complainant was processed and after going through the documents submitted by her, it was observed that the claim has been submitted after the time specified in the terms and conditions of the policy. So, the claim of the complainant has been rightly repudiated vide letter dated 4-2-2011. The learned counsel for opposite party No. 2 submitted that as per terms and conditions mentioned in the Card member Agreement, the insured person could directly get in touch with the Insurance Company in case of claims and would not involve HDFC Bank in any manner whatsoever. The Bank does not hold out any assurances and does not make any representation on claims being processed or whatever other matter connected with the insurance – the full responsibility of which would be of the Insurance Company. The opposite party No. 2 is not liable for any loss/damage/claim/liability that may arise out of any act or omission of the service provider with whom the bank has a tie-up.

9. The opposite party No. 1 has repudiated the claim of the complainant vide letter Ex. C-8. The relevant portion of the said letter reads as under :

   “...After scrutinizing the claim documents wrt this claim, we regret to inform you that the above claim lodged by you is not payable because :

   Reason – Claim repudiated due to delayed submission.

   Clause Description : The insured person shall provide us with any documentation and information, we or our TPA may request to establish the circumstances of the claim, its quantum of our liability for the claim within 15 days of the earlier of our request or the insured person.

   In view of the aforesaid, we are unable to reimburse any amount under this claim.”

10. The complainant developed uterus problem on 10-10-2010 and she consulted Dr. Arvind Sharma vide his prescription slip Ex. C-4. As per Ex. C-5, thereafter she got removed her uterus due to multiple fibroids at Bal Nursing Home & Hospital, Ludhiana and was hospitalized there from 13-11-2010 to 18-11-2010 and later on remained under post-hospitalization treatment of said doctor. Then she returned to her home at Bathinda. A perusal of prescription slip Ex. C-6 of Dr. Mandeep Chitkara reveals and she developed 'Stitch Abscess' in the wound and she took treatment for that problem from Dr. Mandeep Chitkara from 1-12-2010 to 25-12-2010 ( on 15-12-2010 medicine was prescribed for 10 days meaning thereby she was under treatment of Dr. Mandeep Chitkara upto 25-12-2010). After post-hospitalization, completion of her treatment and recovering fully from the said operation, she submitted her claim Ex. C-2 with opposite party No. 1 on 26-12-2010.

    The contention of opposite party No. 1 that complainant was declared fully cured on 14-11-2010 is not tenable because the complainant has undergone major operation of removal of uterus and after such a major operation, the wound and stitches take time to heal. In the case of the complainant, her stitches had developed Abscess and Dr. Chitkara vide Ex. C-6 treated her for Abscess of stitches. In this regard the contention of the complainant that Dr. Chitkara after consulting Dr. Bal at Ludhiana on phone, who advised her that it was a minor problem and could be handled at Bathinda without extra cost, travel & inconvenience to the patient, treated her, seems to be correct. The problem developed to the complainant after operation, was due to removal of uterus only. The complainant was operated by Dr. Bal for removal of uterus on 14-11-2010 and she got treatment of Abscess of Stitches from Dr. Chitkara from 1-12-2010 to 25-12-2010, which is a genuine period of healing of wound and stitches and is a continuous treatment. Hence, there is no delay on the part of the complainant in submission of claim documents with opposite party No. 1. The support can be sought by the observations of the Hon'ble State Commission, New Delhi in the case titled 2008(II) CPJ 42 Madhu Jain Vs. National Insurance Co. Ltd., wherein it has been held :-

    “....Reimbursement – claim repudiated as notice of hospitalization of insured not given within prescribed period – Complaint dismissed by Forum – Hence appeal – Any contract/statute has to be read as a whole, not in isolation – There is no pick and choose – Service provider cannot take advantage of one clause to himself and deny the same available by another clause to consumer – Notice with full particulars could not be sent within prescribed period as insured being very ill and her only son was looking after her – Benefit of Clause 5.4 of policy entitled – Insurer liable to pay insurance amount – Compensation for mental agony and harassment awarded.

    ....(ii) Interpretation of Statute – Universal law – If two possible interpretations of any term of contract or statute possible, interpretation which protects interest of consumer should be accepted.”

    “....It is settled law that any contract or for that purpose any law i.e. statute has to be read as a whole and not in isolation. There is no pick and choose. Service provider cannot take advantage of one clause to himself and cannot deny the same available by another cause to the consumer. Every case has to be judged on its own facts and circumstances and no rule of thumb can be applied by any service provider. Contract of insurance is for the benefit of the insured and if there is such circumstances which has even an element of plausibility of an explanation of any delay, the benefit of the clause wanting certain directory requirements should always be given to the consumer. By no stretch of imagination the nature of Clause 5.3 can be held mandatory. At the most it is directory to be interpreted in the given facts and circumstances of the case.”

    “...Here the claim of the appellant was repudiated with a sledge of hammer without going into facts as to what was the condition of the patient who remained in the hospital for more than 8-9 days and thereafter was being looked after by her only son and to expect in such an eventuality to immediately inform or given intimation to the insurance company is too much. Merely because the respondent was discharged from the hospital does not mean that she was fit enough to go for work. There is convalesce period also. Life is more important than any claim of insurance as to the medical expenses.”.

11. Moreover, the opposite party No. 1 has not placed any document on file to prove that any terms and conditions were supplied to the complainant. In this view of the matter, we get support from the observations of the Hon'ble State Commission, Punjab, Chandigarh, in the case titled 2010(1) CPJ 189 New India Assurance Company Limited & Anr Vs. Arun Kumar Mangal wherein it has held :-

    “....Alleged terms and conditions of policy not communicated to insured – Repudiation of claim not justified – Deficiency in services proved”

12. Hence, keeping in view the facts, circumstances and the record produced on file by the parties, this Forum is of the view that there is deficiency in service on the part of the opposite party No. 1 in repudiating the claim of the complainant on hypothetical ground and the complainant is entitled for claim amount of Rs. 32,936/-, submitted by her vide Ex. C-2.

13. In the result, this complaint is accepted with cost and compensation of Rs. 5,000/- against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay Rs. 32,936/- being the claim amount to the complainant.

The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance of order within the stipulated period, an amount of Rs. 32,936/- would carry interest @ 9% P.A. from the date of institution of complaint i.e. 11-5-2011 till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

28-10-2011

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member