Date of Filing : 22.07.2021
Date of Disposal: 30.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A.,B.L., .....MEMEBR-I
THIRU.P.MURUGAN,B.Com. ....MEMBER-II
CC. No.31/2021
THIS TUESDAY, THE 30th DAY OF AUGUST 2022
Mrs.Radha, W/o.Narasimman,
No.11, Kannadasan Nagar Main Road,
Ramapuram, Tiruvallur District. ……Complainant.
//Vs//
ICICI Lombard General Insurance Company Limited,
Rep. by its Branch Manager,
3rd Floor Unit No.684-690,
Seethakathi Business Center, Anna Salai,
Thousand Lights, Chennai -600 006. ..........Opposite party.
Counsel for the complainant : Mr.S.Muthukumaravel, Advocate.
Counsel for the opposite party : Mrs.A.LathaMaheswari, Advocate.
This complaint is coming before us on various dates and finally on 24.08.2022 in the presence of Mr.S.Muthukumaravel, Advocate counsel for the complainant and Mrs.A.Lathamaheswari, Advocate counsel for the opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service on the part of the opposite party in repudiating the insurance claim along with a prayer to direct the opposite party to pay a sum of Rs.47,300/- being the expenses for the insured at the hospital towards the operation and to pay a sum of Rs.27,193/- towards the pre and post hospital expenses and to pay a sum of Rs.25,000/- towards compensation for the mental agony and financial loss caused to the complainant due to the deficiency in service and to pay a sum of Rs.25,000/- towards compensation for making un unjustified repudiation and to pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
The complainant availed policy from the opposite party which was a complete Health Insurance Policy for her daughter Kalpana/beneficiary and the first year of policy commences from 2009-2010 vide policy No.4063i/HAP/B-05043293/00/000. The policy was periodically extended till date and it was renewed for the period 23.12.2018 to 22.12.2019 for a sum of Rs.3,00,000/- on payment of premium amount of Rs.8762/-. On 03.10.2019 the insured/Beneficiary was admitted in K.M. Nursing Home and Hysterotomy was done and a dead foetus was removed and after that she was discharged on 06.10.2019. The hospital expenses comes to Rs.47,300/- and other incidental expenses comes to Rs.27,193/-. The complainant on 17.10.2019 made a claim with the opposite party for the reimbursement of the above amount and on 04.11.2019 the opposite party sent a mail stating that the claim form is under processing vide claim No.220100539463. On 11.11.2019 the opposite party sent a mail repudiating the claim of the complainant and once again sent an email on 21.11.2019 justifying the repudiation the opposite party contending that to avail the Maternity Benefit “both the insured and her husband shall be enrolled in the policy”. The opposite party quoting the part III of the policy “Extension HC 18 Maternity Benefited” which is not available to the complainant at the inception of the policy and was neither brought to the notice of the complainant and the opposite parties never made aware by written communication regarding the addition of this clause in the policy. Further it was submitted that the contention of the opposite party that to claim maternity benefit both husband and wife should be enrolled in the policy was unfair and illegal. Thus the present complaint was filed for the reliefs as mentioned above.
Defence of the opposite party:
The opposite party filed written version admitting that the complainant availed the Health Insurance Policy and that the Beneficiary/Insured was her daughter and that the policy commenced from 2010-2011 and the same was renewed every year periodically and they also admitted that the complainant has made a claim of reimbursement for the medical expenses incurred for the insured and the same was repudiated by the opposite party stating that as per the Part III of the policy Extensions/Endorsements applicable under the plan, Extension HC18-Maternity benefit was available for the insured or insured’s spouse provided insured and insured’s spouse both are covered under the same family floater policy. Thus they sought for the dismissal of the complaint justifying the repudiation made by them.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A11 were marked. On the side of opposite party proof affidavit was filed and documents Ex.B1 and Ex.B2 were marked.
Point for consideration:
Whether the repudiation by the opposite party for the reimbursement of health insurance claim made by the complainant quoting the clause Extension HC18-Maternity benefit is proper and if so to what relief the complainant is entitled?
Point:
On the side of complainant the following documents were filed in support of complaint allegations;
The policy Certificate Copy in the name of complainant was marked as Ex.A1;
Claim form dated 17.10.2019 was marked as Ex.A2;
Discharge Summary issued by the K.M. Nursing Home dated 06.10.2019 was marked as Ex.A3;
E-mail sent by the opposite party dated 04.11.2019 was marked as Ex.A4;
E-mail sent by the complainant dated 09.11.2019 to the opposite party was marked as Ex.A5;
Claim Repudiated e-mail dated 11.11.2019 was marked as Ex.A6;
E-mail sent by the complainant dated 18.11.2019 to the opposite party was marked as Ex.A7;
Email sent by the opposite party dated 21.11.2019 to the complainant was marked as Ex.A8;
Medical bill dated 06.10.2019 for a sum of Rs.47,300/- was marked as Ex.A9;
Medical bills (Series) were marked as Ex.A10;
Policy wordings for the year 2011 to 2012 was marked as Ex.A11;
On the side of opposite party the following documents were filed in support of their defence;
The policy copy terms and conditions was marked as Ex.B1;
Repudiation letter marked as Ex.B2;
We heard the oral arguments made by the complainant and perused the written arguments filed by both the parties. It is represented by the counsel for the opposite party that the written argument filed by them may be treated as oral arguments and hence to decide the complaint on merits we considered the written argument filed by the opposite party as oral arguments and passed the orders.
The original policy document was filed as Ex.A11 by the complainant however Ex.A1 was produced which is the present policy document. In the present policy document Ex.A1 we could see that under the caption what is covered under the policy under the clause Maternity benefit it is provided as medical expenses for the delivery of the child, where insured person and spouse, both are covered, after a waiting period of 3 years, subject to the following sub-limits: Normal Delivery Rs.15,000/- Caesarean Delivery Rs.25,000/- pre-Post Natal Rs.2,000/- each.
It is also seen that the same clause ‘g’ was an Extension HC-33-Maternity Benefit and was added at a later point of time. We have come to the said conclusion for the reason that the said clause is completely absent under the part III of the original document’s caption terms and conditions. Thus it is clear that the said clause ‘g’ in the new policy has been added at a later point of time. It is to be seen that the policy was taken in the year 2009 when the insured/daughter of the complainant is unmarried and hence when the subsequent extension clause was added, the same should be brought to the notice of the complainant enabling her to join the family member. It is clearly proved as per the pleadings of the complainant that the opposite party having issued the policy renewed the same without any protest or no restrictions. It was also the contention of the complainant that if the said extension clause was brought to the knowledge of the complainant or insured they would have included her son in law as per the terms and condition or otherwise. Hence, not intimating the complainant about the addition of new clause to the complainant is a clear negligence and deficiency in service on the part of the opposite party. The case of the complainant gains support by the recent decision rendered by the Apex Court in Jacob Punnen & Another (Vs) United India Insurance Company Limited in I (2022) CPJ 87 (SC) wherein their lordships had held in their words
“In such a situation, there can be said to be no consensus ad idem on the introduction of the cap on the coverage by the insurer, as the appellants were not informed that they had paid premium for a new policy, but were led to believe that they had in fact renewed a pre-existing policy on the same terms, with only difference being the removal of their son as a beneficiary and a higher coverage (from Rupees 6 lakhs to Rupees 8 lakhs in total) for the appellants, which was accepted by the insurer. The general rule of acceptance of an insurance proposal by the assured involves unconditional acceptance of all the terms. 6 Thus the cap on the coverage placed by the insurer without prior intimation to the assured and without providing an opportunity to the assured to seek alternate insurance policies that were more favourable to their needs was restrictive, and thus not enforceable.“
Further it was also made clear that the contract of insurance being a contract of uberrima fides, the same applies to both the insured as well as insurer. It is held that the principle of uberrima fides applies to both and in the context of omission of one of them to notify the other about material changes in the terms and conditions at the stage of pre contract was held as not proper. Further it has been held that
“In view of the state of law, which is, that the insurer was under a duty to disclose any alteration in the terms of the contract of insurance, at the formation stage (or as in this case, at the stage of renewal), the respondent cannot be heard to now say that the insured were under an obligation to satisfy themselves, if a new term had been introduced. If one considers the facts of this case, it is evident that the insurer had caused a renewal reminder, which was acted upon and the renewal cheque, issued by the appellant. At that stage, or just before the renewal premium was furnished the insurer, or its agent was under a duty to alert the appellants that the change in terms, was likely to impact their decision, and if so required, offer a better or fuller coverage. One cannot be oblivious to two circumstances here. The first, is that medical or health insurance cover becomes crucial with advancing age; the policy holder is more likely to need cover; therefore, if there are freshly introduced limitations of liability, the insured may, if advised properly, and in a position to afford it, seek greater coverage, or seek a different kind of policy. The second, is that most policies – health and medical insurance policies being no exception, are in standard form. It would be worthwhile to notice at this stage that one who seeks coverage of a life policy/a personal risk, such as accident or health policy has little choice but to accept the offer of certain standard term contracts – which are termed as contracts d’ adhesion, a French legal term“
The said Apex Court decision squarely applies to the facts of the present case where the extension clause which was specifically added to the policy condition was not brought to the notice to the complainant. There are no pleadings or documents produced by the opposite party to prove that the subsequently added extension clause was informed to the complainant/Insured enabling them to carry out the necessary corrections. In such circumstances we have no other option but to hold that the opposite party repudiating the Maternity Benefit claim to the complainant’s daughter on the ground that the spouse was not a party to the insurance quoting the clause as per the Part III of the policy Extensions/Endorsements applicable under the plan, Extension HC18-Maternity benefit amounted to deficiency in service on the part of the opposite party.
With regard to the relief to be granted to the complainant, this Commission is not in a position to ascertain the claim amount and hence, it is appropriate to direct the opposite party to determine the claim amount according to their terms and conditions. We answer the point accordingly.
In the result, the complaint is partly allowed directing the opposite party;
a) to consider the claim for reimbursement within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardships caused to the complainant;
c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 30th day of August 2022.
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MEMBER-II MEMBER -I PRESIDENT
List of document filed by the complainant:-
Ex.A1 .............. Policy certificate Xerox
Ex.A2 17.10.2019 Claim Form Xerox
Ex.A3 06.10.2019 Discharge Summary. Xerox
Ex.A4 04.11.2019 e-mail by the opposite party. Xerox
Ex.A5 09.11.2019 e-mail by the complainant. Xerox
Ex.A6 11.11.2019 Claim repudiated email by opposite party Xerox
Ex.A7 18.11.2019 e-mail by the complainant. Xerox
Ex.A8 21.11.2019 e-mail by the opposite party. Xerox
Ex.A9 06.10.2019 Medical bill Xerox
Ex.A10 .............. Medical bills (serious) Xerox
Ex.A11 .............. Policy Wordings for the year 2011 to 2012. Xerox
Document filed by the opposite party:
Ex.B1 .............. Policy copy terms and conditions. Xerox
Ex.B2 .............. Repudiation letter. Xerox
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MEMBER-II MEMBER-I PRESIDENT
