DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.415 of 10-09-2010 Decided on 11-07-2011
Vikram Garg, aged about 32 years, son of Sh. Madan Lal Garg, Resident of H.No.5146, Cozy Home, Nai Basti, Gali No.6, Bathinda. .......Complainant Versus
HDFC ERGO General Insurance Co. Ltd., Regd. Office at Ramon House, H.t. Parekh Marg, 169, Backbay, Reclamation, Mumbai-400020, through its M.D./Chairman. HDFC ERGO General Insurance Co. Ltd., SCO No.101-102-103, Second Floor, Batra Building, Sector 17-D, Chandigarh-160014, through its Authorized Person. HDFC ERGO General Insurance Co. Ltd., Branch Office The Mall, Bathinda, through its Manager.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Sh.Amarjeet Paul, Member. Present:- For the Complainant: Sh.Vikas Singla, counsel for the complainant. For Opposite parties: Sh.Varun Gupta, counsel for opposite party Nos.1&2. Opposite party No.3 exparte. ORDER
Vikramjit Kaur Soni, President:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant had purchased medical Insurance Policy No.50007355 with Card No.21191 of the opposite parties i.e. HDFC ERGO General Insurance Co. Ltd. in his name w.e.f. 21.08.2009 to 20.08.2010 and paid the premium amount of Rs.3,709/- to the opposite parties. Unfortunately, the complainant fell ill due to Acute Pancrititis i.e. Abdominal pain, high grade fever, vomiting and was got admitted in Deep Multi Superspeciality Hospital, Bathinda on 05.05.2010 where he was got diagnosed and treated by Dr. J.S. Sandhu, MS (Surgeon) and he discharged from the hospital on 14.05.2010. The complainant spent Rs.49,940/- as hospital charges which included Rs.1,000/- as admission charges, Rs,5,000/- per day as ICU charges (total Rs.25,000/- for five days), room charges @ Rs.2,500/- per day (total Rs.12,500/-), Doctor Fee @ Rs.500/- per day (total Rs.5,000/-), Rs.3,000/- as Nursing Fee, Rs.2,940/- as Lab Test and Rs.500/- as Ultra Sound Charges. The complainant also spent Rs.39,379/- for medicines prescribed by the doctor. Thereafter, the complainant lodged the claim with the opposite parties vide claim No.8333/1, submitted on 17.05.2010 through On Dot Courier vide POD No.612458217 and furnished all the requisite formalities for settling the claim including all medical bills and other documents in original but the opposite parties without any reason vide their letter dated 23.08.2010 repudiated the claim of the complainant. Hence, the complainant has filed the present complaint to seek directions of this Forum to the opposite parties to reimburse the medical insurance claim of Rs.89,319/- alongwith cost and compensation. 2. The opposite party Nos.1&2 have filed their separate joint written statement and pleaded that neither any such transaction has taken place at Bathinda nor the opposite parties have any office/branch office at Bathinda, as such, this Forum has no territorial jurisdiction to try and entertain the present complaint. The opposite party Nos.1&2 have admitted the fact that the complainant purchased the medi-claim Insurance Policy (Health Suraksha Policy) of the opposite party Nos.1&2. They pleaded that at the time of purchasing the said Policy, he did not disclose all the material facts required from him regarding his previous ailments and at the time of filling the Proposal Form misstated the material facts which were well within his knowledge. In this way, the complainant committed breach of the pious relationship between the Insured and the Insurer. The complainant purchased the said Policy to defraud the opposite party Nos.1&2. He under his signatures made a declaration admitting all the terms and conditions of the Policy. The complainant was suffering from acute Pancreas since long before purchasing the said Policy and he did not disclose these facts at the time of purchasing the said Policy and committed breach of the fundamental principles of utmost good faith of the Insurance law. As per Exclusion Clauses of terms and conditions of the Policy, which are within the knowledge and possession of the complainant, the Insurer is not liable to pay any claim under the Policy for any treatment which begins during waiting periods and further the illnesses and treatments of such acute disease will be covered subject to a waiting period of two years in the third policy year as long as the insured person is insured under Health Suraksha Policy continuously and without any break. The opposite party Nos.1&2 have further pleaded that the complainant himself violated the terms and conditions of the Policy and the claim of the complainant has been repudiated on the basis of terms and conditions of the Policy. 3. The opposite party No.3 despite service of notice/summon has failed to appear before this Forum. Hence, exparte proceedings are taken against the opposite party No.3. 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. The complainant is holding HDFC ERGO Medi-claim General Insurance Policy No.50007355 with Card No.21191 w.e.f. 21.08.2009 to 20.08.2010. The complainant fell ill due to Acute Pancrititis i.e. Abdominal pain, high grade fever, vomiting and he was admitted in Deep Multi Superspeciality Hospital, Bathinda on 05.05.2010. He remained hospitalized from 05.05.2010 to 14.05.2010. The complainant remain in ICU for 5 days during the said period of his treatment due to his serious illness, he spent Rs.49,940/- as hospital charges which included Rs.1,000/- as admission charges, Rs,5,000/- per day as ICU charges (total Rs,25,000/- for five days), room charges @ Rs.2,500/- per day (total Rs.12,500/-), Doctor Fee @ Rs.500/- per day (total Rs.5,000/-), Rs.3,000/- as Nursing Fee, Rs.2,940/- as Lab Test and Rs.500/- as Ultra Sound Charges. Besides this, the complainant also spend Rs.39,379/- for medicines prescribed by the doctor concerned from time to time. The complainant lodged a claim with the opposite parties vide claim No.8333/1 which was submitted on 17.05.2010 through On Dot Courier vide POD No.612458217. He furnished all the requisite documents including all medical bills alongwith other documents in original. The opposite parties have repudiated the claim of the complainant vide their letter dated 23.08.2010. 7. The opposite party Nos.1&2 have taken legal objections that no such transaction has taken place at Bathinda nor the opposite parties have any office/branch office at Bathinda, as such, this Forum has no territorial jurisdiction to try and entertain the present complaint. The opposite party Nos.1&2 have admitted the fact that the complainant had purchased the medi-claim Insurance Policy (Health Suraksha Policy) from the opposite parties. The Insurance claim was payable as per terms and conditions of the Policy. At the time of purchasing the abovesaid Policy, he did not disclose all the material facts regarding his previous ailments and at the time of filling the Proposal Form, mis-stated the material facts which were well within his knowledge and liable to be disclosed to the Insurer. In this way, the complainant committed breach of the pious relationship between the Insured and the Insurer. The complainant has purchased medi-claim Policy in order to defraud the Insurer/opposite party Nos.1&2. The complainant under his signatures made a declaration admitting all the terms and conditions of the Policy. The complainant was suffering from acute Pancreas since long before purchasing the said Policy. This fact was not disclosed at the time of purchasing the said medical Policy and committed breach of the fundamental principles of utmost good faith. As per Exclusion Clauses of terms and conditions of the Policy, which were within the knowledge and possession of the complainant and admitted by him, the Insurer is not liable to pay any claim under the Policy for any treatment, this begins during waiting periods as described in the Policy and further the illnesses and treatments of such acute disease will be covered subject to a waiting period of two years in the third policy year as long as the insured is insured under Health Suraksha Policy continuously without any break. The Repudiation of the claim has been made as the complainant has violated the terms and conditions of the Policy. 8. The opposite parties have rejected the claim of the complainant vide repudiation letter dated 17.07.2010 Ex.R-4 that “Claim repudiated due to mis-representation of material facts.” 9. Sh. Praman Preet Singh, authorized signatory, HDFC ERGO General Insurance Co. Ltd., has deposed in his affidavit Ex.R-1 that the investigation of the abovesaid case was conducted by Dr. Biswendu Bardhan and as per his report dated 03.07.2010, there are purchase bills of some medicines but the same have not been prescribed by the concerned doctors and further the doctors have advised clinical tests but the clinical reports are not available and there are clinical reports but the same have not been advised by the doctors. Various other discrepancies have also been highlighted by Dr. Biswendu Bardhan in his detailed report. The complainant has been suffering from Acute Pancreas since long before purchasing the Policy and he knew very well with regard to his previous illness which fact was not disclosed by him to the Insurer at the time of purchasing the medi-claim policy and committed breach of the fundamental principles of utmost good faith of the Insurance Law. As per Exclusion Clauses of terms and conditions of the Policy, which are within the knowledge and possession of the complainant, the Insurer is not liable to pay any claim under the Policy for any treatment, which begins during waiting periods as described in the Policy and further the illnesses and treatments of such acute disease will be covered subject to a waiting period of two years in the third policy year as long as the insured person is insured under Health Suraksha Policy continuously and without any break. The claim of the complainant was scrutinized and the opposite parties concluded that the claim is not payable under terms and conditions of the Policy. The opposite parties through Ex.R-1 have further submitted that as per definition of Hospital provided in the Policy terms and conditions, provided to the complainant as elucidated by the report of Dr. Biswendu Bardhan on page 13 point 4.3 of the report. The complainant while getting himself insured did not disclose all the material facts required from him with regard to his previous illness, thus he committed breach of utmost good faith. The complainant at the time of filling the Proposal Form misstated the material facts which were well within his knowledge. 10. The opposite parties have specifically pleaded that the hospital from which the complainant has taken treatment, has failed to qualify as per definition No.7 of the hospital provided in the Policy terms and conditions whereas a perusal of Ex.R-3 report of verification shows that:- “Hospital is run by a builder (property). The hospital claim to have 40 beds which is a false statement as the hospital has only 30 beds and there is some construction is going on in front of the hospital restricting the smooth access to the hospital building.” Further, a medical record produced by the opposite parties itself shows that the complainant remained hospitalized for the period specified in his complaint which means, the hospital from where the complainant has taken the treatment is covered by Definition 7(b) Pg.16 of Health Suraksha Policy – Policy Wordings. The definition 7(b) is reproduced as under:- “Hospital means any institution in India (including nursing homes) established for Medical Treatment which:- (b) (i) is under the constant supervision of a Medical Practioner, and has fully qualified nursing staff (that hold a certificate issued by a recognized nursing council) under its employment in constant attendance and maintains daily records of each of its patients, and has at least 10 Inpatient beds, and has a fully equipped and functioning operation theatre.”
Thus, the hospital fully falls under the definition 7(b). Moreover, a perusal of Policy Wordings show that there is no list of particular hospitals which are covered under the said Policy. 11. The Insurance is an agreement which is to be signed by both insured and the insurer. The validity of the HDFC EGRO medi-claim Insurance Policy was from 21.08.2009 to 20.08.2010. The complainant got treatment during validity of the Policy. The opposite parties have repudiated the claim of the complainant on the ground that he has concealed the material facts regarding his health whereas it is the duty of the opposite parties to verify all the aspects before issuing the Insurance Policy. 12. Before issuance of the Insurance Policy, the opposite parties should get conducted the Medical of the Insured on their own level to the effect that he has not been suffering from any previous disease. The opposite parties have blindly issued the Insurance Policy to the complainant without verifying any facts about his health. Now, when the complainant has filed the claim before the opposite parties, they have involved into technicalities and has pleaded that there is concealment of material facts and breach of utmost good faith. These formalities with regard to health, address and other entries which are done by the Insured in the Proposal Form are to be verified at initial stage by the insurer and not at the stage of paying the claim to the complainant and the terms and conditions should fully explained to the complainant and got signed by the Insured. Each and every page of the insurance terms and conditions must be signed by both the parties i.e. Insured as well as Insurer. The support can be sought by the precedent laid down by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in case titled The Oriental Insurance Co. Ltd.& Another Vs. M/s Puneet Pasricha, First Appeal No.1579 of 2004, decided on 05.03.2010 wherein the Hon'ble State Commission has held that :- “......The appellants cannot be permitted to frustrate the insurance claim on the technicalities.” 13. The complainant has specifically submitted that he had purchased Insurance Policy from the agent of the opposite parties. For this, he has given the address of Branch office of the opposite parties but they have refused to take the summons on the ground that these summons do not belong to their office. Correct and fresh address of the opposite party No.3 was asked which was given by the complainant. The opposite party No.3, the Insurance Agent despite receiving of summon, has proceeded exparte. A Judicial Notice can be taken that the Policies are issued by Head Quarter, not by local branch office whereas the opposite parties have different agents in the city who are associated with the branch offices, allure the insured persons to take the policies and premiums are collected from the insured which are again to be sent to Head Office. Hence, the complainant knows only the Insurance agent through whom he has taken Policy and resides in his city. Page No.5 of Ex.C-1, a letter dated 28.08.2009 shows that correspondence has been done by H.D.F.C. Bank with the complainant. Further, Ex.R-12 shows Corporate – HDFC Bank Assurance and insurer HDFC ERGO – which means both are sister concerns. 14. A perusal of documents placed on file shows that the correspondence has been done with the complainant at Bathinda by the opposite parties. Therefore, the contention of the opposite parties that the Consumer Fora has no territorial jurisdiction, is not tenable. The opposite parties have themselves placed on file Ex.R-18 as treatment record of the complainant. Ex.C-9 are the bill paid by him. The opposite parties have alleged that the bills of medicines produced on file were not recommended for such disease but they have not placed any evidence that which should be the proper medicine in case of such type of disease. Further, the opposite parties have failed to prove with cogent and convincing evidence that how the complainant has been suffering from the previous ailment as the perusal of entire medical record shows that he has been suffering from vomiting, Pain Adbomen and high grade fever i.e. Acute pancreas but nowhere, it has been mentioned that he has been suffering from the long time from this disease. Hence, no evidence of pre-existing disease is placed on file. 15. Therefore, in view of what has been discussed above, this complaint is accepted with Rs.5,000/- as cost and compensation against the opposite party Nos.1&2 and dismissed qua opposite party No.3 and the opposite party Nos.1&2 are directed to pay the amount of Rs.39,379/- as medical expenses as per Ex.C-7 and Rs.49,940/- as hospital charges as per Ex.C-8, in totaling amount of Rs.89,319/- to the complainant. Compliance of this order be done within 45 days from the date of receipt of copy of this order. In case of non compliance, interest @ 9% P.A. will yield till realization. 16. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced 11.07.2011 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
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