Delhi

North East

CC/481/2014

Sudershan Prasad - Complainant(s)

Versus

Heritage Health TPa Pvt. Ltd. - Opp.Party(s)

05 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 481/14

 

In the matter of:

 

	Shri Sudershan Prasad Flat No. D-14/FM-4, Vardhan Apartment Dilsahd Colony, Delhi 110095	Complainant
	Versus
1       2	Heritage Health TPA Pvt Ltd. 411, Laxmi Deep Building, laxmi Nagar, Distt. Centre, Laxmi Nagar, Delhi 110092   National Insurance Co. Ltd. 21 Darya Ganj, New Delhi-110002	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

08.12.2014 30.05.2018 05.06.2018

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The grievance of the complainant in the present complaint is that he had taken National Swasthya Bima Policy (NSBP) from the OP2 on 14.10.2013 w.e.f. 14.10.2013 to 13.10.2014 vide policy                   no. 390401/48/13/8500002193 against premium paid to the tune of Rs. 7,079/- to OP2 for a sum assured of Rs. 5,00,000/- covering the complainant himself and his wife Smt. Manti Devi for mediclaim entitlement. OP1 is the Third Party Administrator (TPA) of OP2. The OP1 had issued health cards with respect the NSBP to the complainant and his wife. The complainant ha  further stated that in the month of June 2014, his wife felt acute pain in her left knee to an extent that she was unable to climb stairs or stand from squatting position and was facing difficulty in walking for which on consultation by the complainant, she was advised to undergo arthoplasty in left knee vide prescription dated 02.06.2014 by Dr. O.N.Nagi, Joint Replacement Specialist at Sir Ganga Ram Hospital for which surgery she underwent preliminary biological tests at SGRH on 05.06.2014 was discharged on 06.06.2014. The wife of the complainant was again admitted at Sir Ganga Ram Hospital on 09.06.2014 when she was operated upon on 10.06.2014 by way of surgery of total knee replacement – Cemented done under CSE and was discharged on 16.06.2014. The complainant incurred a total expenditure of  Rs. 2,53,327/- in addition to the initial deposit of Rs. 16,524/- thereby totaling a sum of Rs. 2,69,761/- in the treatment / surgery of his wife. The complainant had submitted the claim form with OP2 on 17.06.2014 with all the requisite documents which was duly received by the OP2, however OP2 failed to reimburse the said claim of the amount of the complainant without any reasonable cause for which reason the complainant has filed the present complaint alleging deficiency of service against the OPs and prayed for issuance of directions to the OPs to pay a sum of Rs. 2,69,761/- to the complainant towards mediclaim alongwith Rs. 1,50,000/- towards compensation for mental pain, agony and financial turmoil and Rs. 50,000/- towards litigation expenses.

The complainant has attached copy of the claim form, copy of the cover note / endorsement schedule, policy schedule for sum assured Rs. 5,00,000/- and premium certificate for mediclaim policy, health cards issued by OP1 with respect the complainant and his wife, e-mails dated 3^rd and 4^th June 2014 from OP1 to help desk of OP regarding treatment details of complainant’s wife, list of panelled TPAs with Sir Ganga Ram Hospital where OP1 is enumerated at serial no. 16, bills, prescription and medical treatment records pertaining to the complainant’s wife admitted at Sir Ganga Ram Hospital (SGRH) and discharge summaries of SRGH dated 06.06.2016 and 14.06.2016 of wife of the complainant.

2. Notice was issued to the OPs. OP1 filed its reply on 01.04.2015 in which it admitted that the complainant was covered under NSBP since 14.10.2013 was complaining for non reimbursement of expenses incurred on surgery of joint knee replacement of his wife, however stated that disease to be pre-existing on ground that the insured’s disease started five years before hospitalization, clearly written in discharge summary and the policy was in first year of operation, so it is considered as pre existing disease and therefore as per policy clause 4.1, all pre existing diseases are covered after continuous coverage of 36 months from inception of first policy and the said claim bearing No. HH741500082 was not complying with the said clause and therefore OP1 had submitted its opinion to OP2 on 09.09.2014 accordingly to decide admissibility/ non-admissibility of claim. OP1 prayed for deletion of its name from the array of parties on ground of no deficiency of service and due discharge of duty on its part as service provider of OP2. OP2 filed its written statement on 04.02.2015,  while admitting that the OP2 had issued the policy under the scheme of BOI NSBP to the complainant and his wife and receipt of claim from complainant, took the defence of inadmissibility / non-maintainability of the claim of the complainant on the basis of internal letter dated 22.08.2014 from OP1 to OP2 with remarks of inadmissibility of claim of complainant under clause 4.1 of NSBP on grounds of pre-existing disease, letter dated 19.9.2014 from Branch Manager of OP2 to Divisional Manager of DO-IV of OP2 notifying reasons for repudiation of claim of complainant on grounds of pre-existing disease falling under exclusion clause 4 and since the claim amount to be repudiated was beyond the financial authority of the Branch, the same was being forwarded to D.O. for repudiation recommendation. Lastly, the OP2 took the defence vide repudiation letter dated 10.12.2014 to the complainant repudiating his claim under exclusion clause 4 and 4.1 of the terms & conditions of the policy as decided by competent authority.
3. Rejoinder to the written statement was filed by the complainant alleging deficiency of service on the part of OP1 & OP2 and holding OP1 as necessary party to the complaint in capacity of TPA of OP2 and reaffirmed his averments in the complaint.
4. Evidence by affidavit was filed by complainant in solemn affirmation / declaration of averments made in the present complaint against the OPs.
5. Evidence by affidavit was filed by OP2 supporting its defence of repudiation of claim of complainant by mentioning exhibit of policy terms & conditions, exhibiting discharge summary of complainant’s wife, copy of observation of OP1 in letter dated 22.08.2014 to OP2 and repudiation letter dated 10.12.2014 to complainant by OP2 rejecting his claim. OP1 was proceeded against ex parte vide order dated 07.10.2015 due to continuous non-appearance since 01.04.2015 after filing its written statement till all subsequent proceedings held before this Forum.
6. Written arguments were filed by OP2 in which the OP2 urged for dismissal of complaint in view of justified repudiation of claim of the complainant on grounds of pre-existing illness as per discharge summary of Sir Ganga Ram Hospital which illness was excluded as per clause 4 and 4.1 of the terms  & conditions of policy of NSBP for first 36 months and contended that all pre-existing diseases when the cover incepts for the first time until 36 months of continuous coverage has elapsed. The OP2 also contended that the discharge summary of SGRH shows that the complainant malafidely, intentionally obtained the said policy without given correct information of health condition/ pre-disease of complainant’s wife to the OP and has approached this Forum to harass and extort money from OP without any justifiable reason. The OP for the very first time filed Prospectus of BOI National Swasthya Bima Policy at this stage.
7. Written arguments were filed by the complainant in the form of questionnaire when firstly complainant argued that the terms and conditions of the policy were never provided or explained to him by the OP2 and OP1 at the time of selling of policy and till date no such policy containing the alleged clause of 4 and 4.1 has been supplied by OP2 to complainant and despite OP2 mentioning in its evidence by way of affidavit that the said policy is exhibited as OP2 W1/1, it has not filed the same alongwith it and urged that in such as case a logical inference of such terms & conditions not binding upon the complainant can be drawn in the light of judgments of United India Insurance Company Ltd V/s. MKJ Corporation III(1996) CPJ 8 SC in which Hon’ble Apex Court has held that It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties….Just as the insured has a duty of 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 applied to them equally with the assured”. Secondly, the complainant argued that no such repudiation letter as dated 10.12.2014 relied upon by OP2 was ever received by the complainant and neither has OP2 placed on record any postal receipt showing dispatch of such letter and the fact that the present complaint was filed by the complainant in October 2014 and the repudiation letter dated December 2014 clearly proved that no repudiation was made till the admission of complaint and was kept pending by OP for almost six months which is unfair trade practice on the part of OPs and lastly urged that the OPs cannot be allowed to take advantage of their own wrongs in not providing / supplying copies of Terms & Conditions of policy and later on taking the plea that the claim is contradictory to the policy’s terms and conditions which were not only suppressed from the complainant but also from this Forum and placed reliance on the judgment of Hon’ble Supreme Court in General Assurance Society Ltd. Vs. Chandumull Jain & Anr. (1966 (3) SCR 500) in which the Hon’ble Apex Court has expressed that “in a contract of insurance, there is requirement of uberrima fides, i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem i.e. against the company in case of ambiguity or doubt”. The said ratio has been followed in the case of United India Insurance Company Vs. Pushpalaya Printers 04 CPJ 22 SC”. The complainant has placed reliance on the judgment of the Hon’ble Supreme Court in the matter of M/s Modern Insulators Ltd. Vs. The Oriental Insurance Co. Ltd passed on 22 Feb 2000 dealing with a similar situation of the appellant urging supply of only cover note and schedule of insurance policy by the respondent in which case the Hon’ble Apex court had reversed the judgment of Hon’ble NCDRC which was of the view that “It is equally responsibility of respondent to call for these terms  and conditions even if they were not sent by appellant (insurance company) as alleged, to understand the extend of risk covered under the policy and the associated aspects” by Hon’ble Apex Court observing per contra that as the above terms and conditions of standard policy wherein the exclusion clause was included were neither a part of contract of insurance nor disclosed to the appellant, respondent (insurance company) cannot claim benefit of the said exclusion clause. Therefore, the findings of National Commission is untenable in law.” The complainant lastly placed reliance on the judgment of Hon’ble NCDRC in New India Insurance Co. Ltd. V.s Jagtar Singh in Revision Petition No. 3619/2012 passed on 01.02.2013 in which the Hon’ble NCDRC, while relying upon the aforementioned decision of M/s. Modern Insulators upheld the judgment of Hon’ble State Commission which had held that it is the fundamental principal of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids each party from non-disclosure of facts which the parties know.
8. We have heard the rival contentions / arguments forwarded by both the parties and have thoroughly pursued the documentary evidence and judgments placed on record before us. The factum of taking NSBP by complainant from OP2 through its TPA OP1 is not in dispute, also not in dispute is the admission of complainant’s wife in Sir Ganga Ram Hospital in June 2014 for knee replacement surgery or the expenses incurred thereon. The grievance of the complainant is non settlement of claim by the OP2 despite coverage granted to him and his wife giving rise / cause of action to the present complaint. On bare perusal of documentary evidence placed on record, it can be seen that repudiation letter was dated 10.12.2014 i.e. after the complaint was filed by the complainant which was filed by OP2 alongwith its written statement. The grounds for repudiation as recommended by OP1 was stated in its reply dated 01.04.2015. However OP2 did not file the terms & conditions of policy either with its written statement or with its evidence by way of affidavit despite stating in the pleadings that it is being exhibited as exhibit OP2 W1/1 which was also strongly objected by complainant during course of final arguments. In fact, the terms and conditions filed by OP2 at the end of the proceedings is also in the nature of a mere prospectus and not a copy / duplicate of terms and conditions supplied to complainant at the time of issuance of policy to him to justify its stand of repudiation of claim according to exclusion clause 4 and 4.1 thereof. The argument of complainant does not veer around disputing the repudiation by OP wrongful or otherwise on grounds of pre-existing illness of his wife but on absence of terms and conditions of policy which he has alleged do not bind him in any manner since non-disclosure of terms of policy was against the spirit of uberrima fides i.e. good faith in light of judgment relied upon by the complainant which is a settled law by the Hon’ble Apex Court. The OP2 could not rebut with cogent documentary evidence, the allegation leveled by the complainant that terms and conditions of policy never were supplied to complainant. 
9. We have applied our judicial mind to the facts of the present case and the arguments forwarded by both the parties and are of the considered opinion that OP2 cannot be allowed to take advantage of its act of omission / commission by initially non supplying copy of terms and conditions of policy and later on conveniently repudiating claim of the complainant on grounds of “pre-existing illness” to wriggle out of its contractual liability. We, therefore, hold the repudiation of claim by OP2 arbitrary, unjustified, and erroneous and against principle of natural justice without going into the merits of whether the case of the complainant was that of pre-existing illness or not since in the absence of the terms and conditions of the policy the same is irrelevant. We allow the present complaint of the complainant and direct OP2 to refund sum of Rs.  2,69,761/- to the complainant towards medi-claim expenses alongwith a sum of Rs. 10,000/- as compensation towards mental pain, agony and financial turmoil and Rs. 5,000/- towards cost of litigation. Let the order be complied with by OP within 30 days of receipt of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  05.06.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member