Order dictated by:

Sh.S.S. Panesar, President.

1. Sh.Sahil Sahdev has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he obtained Health Insurance from Opposite Party vide policy No. 06379108 covering risk period from 8.10.2007 to 8.10.2016, copy of cover note is annexed. The complainant is consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and was to be hospitalized at Fortis Escorts Hospital, Amritsar for the treatment of Renal Dysfunction, from 16.1.2015 till 20.1.2015 and the hospitalization and treatment continued thereafter and the complainant was time and again was to be hospitalized and the treatment is continued till date and the pre authorization requests for the treatment during some hospitalization was made to Opposite Party and all the claim bills were lodged with Opposite Party which till date has come to Rs.3,90,335/-. It is pertinent to mention over here that the patient was hospitalized time and again and requests were made for pre authorization of hospital bills and later filing the bills with the Opposite Party, but the Opposite Party till date has not settled the genuine claim of the complainant. It is the great misery that the complainant on one hand is suffering from disease and the Opposite Party instead of making good the genuine claim of the complainant sitting mum over the claims. The Opposite Party had issued the said policy on cashless basis for the medical treatment upto Rs.4 lacs, but the complainant had to pay the amount from out of pocket. The aforesaid acts of the Opposite Party in not settling the genuine claims of the complainant is an act of deficiency in services, unfair trade practices, mal-practice and is not sustainable in the eyes of law and has caused lot of mental tension, agony and harassment to the complainants besides financial loss to the complainant and for which the Opposite Party is liable to pay the compensation of Rs.50,000/- to the complainant; the cause of action has arisen to the complainant to file the present complaint when the Opposite Party has not settled the genuine claim of the complainant and the complaint is well within the period of limitation as prescribed under the Act. The complainant has sought the following reliefs vide instant complaint:-

a) Opposite Party be directed to pay the claims of Rs.3,90,335/- alongwith interest @ 12% per annum thereon from the date of payment till realization.

b) Opposite Party be directed to pay the compensation of Rs.50,000/- to the complainant.

c) Opposite Party be directed to pay the adequate cost of the present litigation.

Hence this complaint.

2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the present complaint is false, frivolous, vexatious and abuse of the process of this Forum and therefore, the same is liable to be dismissed. The complainant has not disclosed any cause of action to proceed against the Opposite Party and in absence of the same, the present complaint is liable to be dismissed; the present complaint is liable to be dismissed on the ground that under the policy, no benefit is payable for the claim intimated to Opposite Party. The Opposite Party received its First Pre-Authorisation request from the complainant for expected date of hospitalisation of the policy holder/ complainant on 17.1.2015, for Bilateral Renal & Right Uretic Calculi. The Opposite Party on 17.1.2015 rejected the request from the complainant as he failed to pay the renewal premium as a result of which the policy had lapsed on 8.10.2014. The complainant paid the renewal premium for revival of the policy alongwith a mandatory health declaration form on 16.1.2015. As per the guidelines of the health declaration form submitted by the complainant for the purpose of revival, the revival will be effective from the date of underwriting decision date or receipt of full premium amount or the date of receipt of consent for revised premium, whichever is later. The premium amount with health declaration form duly signed by the complainant was received on 16.01.2015 and the underwriting decision of the company was taken on 18.1.2015. Hence, the policy was reinstated only on 18.1.2015. The Opposite Party received the Pre-Authorisation request from the complainant on 17.10.2015 i.e. when the policy was still lapsed. Thus, the Opposite Party in consonance with its terms and conditions and additional guidelines stated in the health declaration form rejected the claim of the complainant as per its clause 8(b) of the terms and conditions; that this Forum has no jurisdiction to entertain the present complaint. There was no deficiency of service or negligence on the part of replying Opposite Party. The complainant has failed to show that there was any deficiency in service or negligence on the part of Opposite Party. It is stated that as per the terms of the policy contract, if the policy is not suitable, the policy holder may get his/ her policy cancelled by returning the policy and policy documents within 15 days (free look period) from the date of policy holder received the policy. The Opposite Party will return the premium paid to the complainant after making certain deductions specified therein. In the present case, the policy was dispatched to the complainant and the same was duly received by him as admitted. The policy holder after the receipt of the subject policy and policy documents did not approach the Opposite Party and got his subject policy cancelled within Free Look Period implying that the policy holder duly accepted the subject policy and its documents with its terms and conditions. Thus, the complaint is devoid of any merit and is liable to be dismissed. The complainant has not produced any record which suggests that he had approached the Opposite Party with any such request. The Opposite Party as per clause 4(1) and 6(2) of the IRDA (Protection of Policy Holder’s Interest) Regulations, 2002, sent the policy and policy documents alongwith the copy of the proposal forms to the policy holder giving him opportunity to review/ cancel the policy within Free Look Period. Despite receipt of the policy and policy documents, the policy holder failed to approach the Opposite Party within Free Look Period making any grievance with respect to the policy or its terms and conditions, implying the policy and its terms and conditions were duly accepted by the policy holder and were in order; that it is further submitted that the complainant has not acted in good faith with respect to subject of this complaint and has approached this Forum with unclean hands, hence in view of the doctrine One who seeks equity must come with clean hands, the complaint deserves no fate other than outright dismissal. The complainant has concealed and suppressed material and relevant facts of the case. The complainant is guilty of suppression vari and suggestion falsi. It is further to bring to the notice of this Forum that the symptoms related to the illness “Bilateral Renal & Right Uretic Calculi” was since 4 to 5 days before date of admission (i.e. 16.1.2015) as mentioned in Pre-Authorisation request form; that the complainant has with malafide and dishonest intention not only concealed the material facts from the Forum, but also twisted and distorted the same to suit her convenience and to mislead this Forum. Further more, the complainant ahs no locus standi to file the present complaint. On merits, facts narrated in the complaint have been specifically denied. It is further stated that the Opposite Party is not adverse in settling genuine claims of its customers. The rejection of Pre-Authorisation is not rejection of the claim itself. The Opposite Party is willing to pay genuine claims and therefore, it is pleaded before this Forum to direct the complainant to produce the medical bills and all the relating hospitalisation documents for the second claim so that the same could be assessed by the Opposite Party in accordance with the policy terms and conditions and it is requested that the complaint may be decided accordingly.

3. In his bid to prove the case, complainant tendered into evidence his affidavit Ex.C1, copy of policy documents Ex.C2, copies of pre authorisation request forms Ex.C3 and Ex.C4, copies of discharge summary Ex.C5 to Ex.C7, original bills (consisting of 36 pages) Ex.C8 and closed his evidence.

4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Chittesha Sharma, Senior Manager Ex.OP1/A, copy of proposal form Ex.OP1, copy of Pre-Authorisation request form Ex.OP2, copy of declaration form Ex.OP3, terms and conditions Ex.OP4, copy of Pre-Authorisation request form Ex.OP5 and closed the evidence on behalf of Opposite Party.

5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6. Ld.counsel for the Opposite Party has vehemently contended that the policy holder after the receipt of the subject policy and policy documents did not approach the Opposite Party and got his subject policy cancelled within Free Look Period implying that the policy holder duly accepted the subject policy and its documents with its terms and conditions. Thus, the complaint is devoid of any merit and is liable to be dismissed. The complainant ahs not produced any record which suggests that he had approached the Opposite Party with any such request. The Opposite Party as per clause 4(1) and 6(2) of the IRDA (Protection of Policy Holder’s Interest) Regulations, 2002, sent the policy and policy documents alongwith the copy of the proposal forms to the policy holder giving him opportunity to review/ cancel the policy within Free Look Period. Despite receipt of the policy and policy documents, the policy holder failed to approach the Opposite Party within Free Look Period making any grievance with respect to the policy or its terms and conditions, implying the policy and its terms and conditions were duly accepted by the policy holder and were in order. In view of the judgements Ors. Vs. Life Insurance Corporation of India IV(2006) CPJ 239 (NC) and Kishore Chandrakant Rathod Vs. Managing Director, ICICI Prudential Life Insurance Company Limited and Ors. (Revision Petition No. 3390 of 2013, NCDRC) wherein it has been laid down that the onus was on the complainant to read the contents of both the documents. The complainant is now estopped from raising the issues/ grievances with respect to refund of premium of the subject policy. The complainant is bound by the policy contract and given up/ relinquish/ waived his right by not exercising the Free Look Period provision. Thus, the complaint is devoid of any merit and is liable to be dismissed.

7. It has been further contended that the complainant has not acted in good faith with respect to subject of this complaint and has approached this Forum with unclean hands, hence in view of the doctrine One who seeks equity must come with clean hands, the complaint deserves no fate other than outright dismissal. The complainant has concealed and suppressed material and relevant facts of the case. The complainant is guilty of suppression vari and suggestion falsi. It is further contended that this Forum has no jurisdiction to entertain the present complaint. The complainant has failed to demonstrate any deficiency in service on the part of the Opposite Party. Deficiency is defined under section 2(g) of the Consumer Protection Act which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of a contract. In the present case, the Opposite Party has strictly acted as per the terms and conditions of the policy contract. The terms of the policy are in the nature of a contract and their interpretation has to be made in accordance with the strict construction of the contract. The words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitution. This Forum can not pass any order in contravention to the terms and conditions of the policy contract. The law in this regard is very well settled and one may conveniently refer to a recent judgement of Hon’ble Apex Court in case Suraj Mal Ram Niwas Oil Mills (P) limited Vs. United India Insurance Company Limited, 1(2010) 10 SCC 567. Same has also been clearly stated in the case of Reliance Life Insurance Company Ltd. Vs. Madhavacharya (Revision Petition No. 211 of 2009), wherein it was held by Hon’ble National Commission that “Since the insurance between the insurer and the insured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly construed to determine the extent of the liability of the insurer.”

8. In the case in hand, the policy lapsed for non payment of premium on 17.1.2015 and the premium was paid on 16.1.2015 and the policy in question was reinstated w.e.f. 18.1.2015. In the case in hand, the complainant got himself admitted for treatment on 16.1.2015 whereas the policy in dispute became effective only w.e.f 18.1.2015, in such a situation, the complainant was under legal obligation to inform about his pre existing disease for which the complainant received Renal Dysfunction treatment at the first instance. Since the policy in dispute became effective only on 18.1.2015, therefore, the complainant was not entitled to receive the expenses incurred on his medical treatment on the first instance from 16.1.2015 to 20.1.2015. The Opposite Party has considered the mediclaim filed by the complainant of the first instance, but the same had to be rejected because the policy in dispute became effective after the hospitalization of the complainant at the first instance. Even the medical slip produced by the complainant dated 15.1.2015 shows that there was a detection of decease known as Renal Dysfunction from which the complainant suffered, even then the complainant did not bring the factum of that disease suffered by him to Opposite Party at the time of renewal of the insurance policy in dispute. Ld.counsel for the Opposite Party has further contended that for the remaining two medical treatments received by the complainant, Opposite Party is ready to settle the claim provided the documents (i.e. medical bills and all the relating hospitalization documents for the remaining claim), are supplied to the Opposite Party by the complainant.

9. On the basis of aforesaid contention, ld.counsel for the Opposite Party has vehemently contended that the claim of the complainant for the treatment received by him w.e.f. 16.1.2015 uptil 20.1.2015 has rightly been rejected. There is no deficiency in service on the part of the Opposite Party. However, the treatment received by the complainant for two occasions lateron, the Opposite Party is ready to settle the same if requisite documents are supplied to them by the complainant and it is contended that the complainant may be disposed of accordingly.

10. But however, in our considered view, the Opposite Party was wrong in presuming that the insurance policy in dispute got renewed only on 18.1.2015, but however, it is settled proposition of law that the policy shall be deemed to have been renewed on the day when the premium has been paid by the insured to the insurer. Reference in this context can be made to Oriental Insurance Company Limited Vs. Dharam Chand & Ors. IV(2011) CPJ 119 (SC), wherein it has been laid down that the insurance company sought to disown its liability on the plea that the accident took place before the commencement of the insurance as indicated in the cover note. But, both the Tribunal and the High Court, turned down the plea and held the insurance company liable to pay the compensation amount. When this appeal was taken up, counsel for the insurance company very fairly stated that since the cheque for the premium amount was received by the company at 4.00 pm on May 7, 1998, the insurance must be deemed to have commenced from that time and four hours later when the vehicle met with the accident, the owner must be deemed to have been covered by the insurance policy. We appreciate the fairness shown by the counsel for the insurance company. The appeal is dismissed but with no order as to costs.

11. The law laid down in the judgement supra is fully applicable to the facts of the present case. The insurance policy in dispute shall be deemed to have been renewed on the receipt of insurance premium by the Opposite Party on 16.1.2015, therefore the hospitalisation of the complainant w.e.f. 16.1.2015 to 20.1.2015 was fully covered under the insurance policy, copy whereof is Ex.C2 on record. In such a situation, the claim filed by the complainant for the reimbursement of the medical expenses incurred by him on his first treatment has wrongly been repudiated by the Opposite Party. As such, the complainant is entitled to get the amount of Rs.2,06,954/- alongwith interest @ 9% per annum from the date of filing of the complaint until full and final recovery.

12. Regarding the other treatments w.e.f. 18.2.2015 to 19.2.2015 and thereafter w.e.f. 15.7.2015 to 16.7.2015, the Opposite Party has very fairly consented to settle the claim of the complainant provided they are supplied with the medical bills and all the relating hospitalisation documents for those claims. As such, the complainant is directed to supply the requisite documents to Opposite Party, within a period of 15 days of the receipt of copy of the order who will dispose of the claim of the complainant within further period of one month therefrom. The complaint is disposed of accordingly. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 16.08.2016.