Order by:

Smt.Aparana Kundi, Member

1.       The complainant  has filed the instant complaint under section 35 of  the Consumer Protection Act, 2019 on the allegations that complainant has purchased a Medi Claim Health Insurance policy from Opposite Party, vide policy no.2825 1009 4394 1000 000 w.e.f. 18.12.2020 to 17.12.2022 for which complainant paid premium of Rs.36,370/- and in this policy family member of the complainant i.e. Sahib Singh, husband, Tejinder Singh was also got insured for the total sum insured of Rs.7,50,000. Unfortunately, health of the complainant became deteriorated as she suffered from Dengue in the Month of September, 2021 and was got admitted in Harbans Nursing Home and Maternity Hospital, Kot Ise Khan, District Moga under the observation of Dr.Raghavdeep Singh Kamboj from 23.09.2021 to 01.10.2021 for which complainant had spent Rs.65,529/- vide bill dated 01.10.2021. Complainant informed the Opposite Party regarding her treatment and deposited the requisite documents as required by the Opposite Party. Complainant was astonished when she received the letter from the Opposite Party dated 20.01.2022, in which, the claim of the complainant was repudiated with reason “As per the document submitted, the claim was found to be misrepresented. As per the policy terms and conditions, if any claim in any manner dishonest or fraudulent or is supported by any dishonest or fraudulent means or devices, whether by insured person or any one acting on behalf of insured person, then this policy shall be void and all benefits under it shall be forfeited. Hence, the claim is being repudiated under section G 8 of policy terms and conditions. Further more the policy is under process of cancellation, no further claim will be entertained.”. However, complainant some how arranged the amount of Rs.65,529/- and got deposited the said amount in the hospital vide bill dated 01.10.2021. Opposite Party was asked many times to refund the amount, but Opposite Party flatly refused to do so. Hence this complaint. Vide instant complaint complainant has sought the following relief:-

a)       Opposite Party may be directed to pay an amount of Rs.65,529/- alongwith interest @ 1% per annum till its realization.

b)      To pay an amount of Rs.1,00,000/- as compensation on account of mental tension, harassment and deficient services.

c)       To pay an amount of Rs.50,000/- as costs of litigation expenses.

2.       Opposite Party appeared through counsel and filed written reply taking preliminary objections therein inter alia that the complaint is not maintainable. There is no deficiency in service on the part of Opposite Party. The Commission has got not jurisdiction to try the present complaint as voluminous evidence is required to decide the complaint. The complainant was insured for the period of 18.12.2020 to 17.12.2022, vide policy no.2825 1009 4394 1000 000 under Health Surakha Policy by the answering Opposite Party for benefits as detailed in Coverage Details of the policy subject to conditions and exclusions of the policy wordings. The benefits under the policy are governed by the terms and conditions of the policy and the liability of the Opposite Party is limited to the insured perils occurring within the policy period subject to conditions and exceptions as mentioned in the terms and conditions of the policy. As alleged by the complainant, she was admitted Harbans Nursing Home and Maternity Hospital from 23.09.2021 to 01.10.2021 and thereafter a claim was lodged with the Opposite Party seeking reimbursement for the expense incurred during the hospitalization. After receiving the claim, an independent investigator was appointed in order to verify the genuineness and veracity of the facts. During the investigation, the following observations were made:-

a)       The patient is covered under the ECHS scheme and admission in the Harbans hospital is suspicious since the Army Base Hospital, Ferozepur is near to her residence and she can be treated in the AH for the present ailment.

b)      As per the doctor the patient requested for the inflation in the bill for an amount of Rs.7000/-

c)       It was observed that the entire ICP was made in a single handwriting which is highly unlikely as the nurses work on shift basis which keeps on changing. As per the ICP it transpires that the insured was attended by one nurse throughout his admission which is not possible.

          The complaint has been filed to harass the answering Opposite Party with malafide intention to cause harm to answering Opposite Party. Hence the complaint may kindly be dismissed. From the aforementioned facts, it is clear that the complainant tried to misrepresent facts to the answering Opposite Party in order to unjustly extract money from the answering Opposite Party. From the facts mentioned above, it is quite clear that the complainant with the connivance of hospital manipulated the documents to get the claim, therefore, the claim was repudiated rightly due to the misrepresentation by the insured vide letter dated 20.01.2022. The complainant has not approached this Commission with clean hands as he has failed to mention the complete facts and has tried to mislead the Commission with false and concocted allegations, which were cooked up with malafide intention, just to grab the benefits, which are over and above the settled terms and conditions under the policy in question, under the garb of her false and vexatious complaint and it is a settled legal preposition that “one who seeks justice must come to the court with clean hands”, so, as such the complaint is liable to be dismissed. Further Opposite Party put reliance of the judgements of Hon’ble Supreme Court in case titled Ram Chandra Vs Saviti Devi and Ors, Hon’ble National Commission in case Oriental Insurance Co. Ltd. Vs Shri dharnidhar Sharma, Hon’ble Apex Court in Oriental Insurance Company Ltd Vs Unimahesh Patel, Hon’ble National Commission in Reliance Industries Ltd. Vs United India Insurance Co. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint is made.

3.       In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C5.

4.       To rebut the evidence of complainant, ld. counsel for the opposite parties tendered in evidence affidavit of Sh.Manoj Prajapati, Manager Legal Claims, HDFC Ergo General Insurance Company Ltd. Ex.OP1 alongwith copies of documents Ex.OP2 to OP9.  

5.       During the course of arguments, ld. counsel for both the parties have mainly reiterated the same facts as narrated in the complaint as well as written reply. Ld. counsel for the complainant contended that complainant has purchased a Medi Claim Health Insurance policy from Opposite Party, vide policy no.2825 1009 4394 1000 000 w.e.f. 18.12.2020 to 17.12.2022 for which complainant paid premium of Rs.36,370/-. Unfortunately complainant suffered from Dengue in the Month of September, 2021 and was got admitted in Harbans Nursing Home and Maternity Hospital, Kot Ise Khan, District Moga under the observation of Dr.Raghavdeep Singh Kamboj from 23.09.2021 to 01.10.2021 for which complainant had spent Rs.65,529/- vide bill dated 01.10.2021. Complainant lodged the claim with the Opposite Party regarding her treatment and deposited the requisite documents as required by the Opposite Party. However, the claim of the complainant was repudiated. On the other hand, ld. counsel for the Opposite Party repelled the aforesaid contention of ld. counsel for the complainant on the ground that the complainant was insured for the period of 18.12.2020 to 17.12.2022, vide policy no.2825 1009 4394 1000 000 under Health Suraksha Policy by Opposite Party. The complainant was admitted in Harbans Nursing Home and Maternity Hospital from 23.09.2021 to 01.10.2021 and thereafter a claim was lodged with the Opposite Party. On receiving the claim, an independent investigator was appointed in order to verify the genuineness and veracity of the facts. During the investigation, the following observations were made:-

a)       The patient is covered under the ECHS scheme and admission in the Harbans hospital is suspicious since the Army Base Hospital, Ferozepur is near to her residence and she can be treated in the AH for the present ailment.

b)      As per the doctor the patient requested for the inflation in the bill for an amount of Rs.7000/-

c)       It was observed that the entire ICP was made in a single handwriting which is highly unlikely as the nurses work on shift basis which keeps on changing. As per the ICP it transpires that the insured was attended by one nurse throughout his admission which is not possible.

          From the above, it is clear that the complainant tried to misrepresent facts to Opposite Party in order to unjustly extract money from them and complainant with the connivance of hospital manipulated the documents to get the claim, therefore, the claim was repudiated rightly due to the misrepresentation by the insured vide letter dated 20.01.2022.

6.       We have perused the rival contentions of ld. counsel for both the parties and also gone through the record. The plea  raised by Opposite Parties  is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy complainant is not entitled to the claim as claimed.  But the Opposite Party could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

7.       Moreover, as alleged by the ld. counsel for the opposite party they cancelled that policy of the complainant and placed on record Cancellation Letter Ex.OP8. So, we are of the view that in case the complainant has breached the terms and conditions of the policy in question and opposite party cancel the policy of the complainant, then in that case the opposite party should refund the premium amount to complainant.

8.       Resultantly, we partly allow the complaint of the complainant and direct the Opposite Party to refund the premium amount i.e. Rs.36,370/- (Rupees Thirty Six Thousands Three Hundred Seventy only) to complainant. The compliance of this order be made by  the Opposite Parties  within 60 days from the date of receipt of this order, failing which the complainant  shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

Announced in Open Commission.