Delhi

North East

CC/193/2016

RAKESH CHAND JAIN - Complainant(s)

Versus

IFFCO TOKIYO GEN.INS. - Opp.Party(s)

31 Aug 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. 193/16

 

In the matter of:

	Rakesh Chand Jain S/o Sh. Asha Ram Jain R/o 1/3376, Ram Nagar Extn. Mandoli Road, Shahdara, Delhi-110032.	Complainant
	Versus
1.           2.	Iffco Tokia General Insurance Co. Ltd Service to be effected through its CEO/MD “IFFCO Sadan”, C-1 District Centre, Saket, New Delhi-110017.   Mrs. Vandana Mittal w/o Deepak Mittal R/o Plot No. 8 & 9, 2nd Floor, Moti Ram Road, Near Nutan Shiksha Sadan, Modern Shahdara, Delhi-110032.	Opposite Parties

 

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

25.07.2016 30.08.2018 31.08.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the sequence of events as narrated by the complainant in the present complaint are that the complainant is an old customer of OP1 and OP2 and had purchased health insurance policy of OP1 eight years ago and since then has been continuing his insurance relationship with OP1 year after year on regular payment of insurance premium. The complainant had renewed health policy namely Individual Medisheld Policy                       No. 19/IMI/15/52463834-01 for himself, his wife, two daughters and one son from OP1 in the month of March 2015 w.e.f 19.03.2014 to 18.03.2015 on the payment of Rs. 16,006/- towards premium through cheque paid to the OP2 who is the agent of OP1. The complainant has submitted that his daughter Prachi Jain who was also covered under the said policy suffered from high fever  in July 2015 and when she could not recover as OPD patient and her condition became critical, the complainant admitted her to a nearby hospital namely East Delhi Medical Centre (EDMC) on 22.07.2015 which was nearest to his residence. The complainant went to the admission department of the aforementioned hospital to enquire whether the insured under the policy was covered for cashless medical benefit but to his utter surprise was told that EDMC was not accepting OP1 insurance card for extending cashless medical benefit. Thereafter complainant contacted OP2 to seek her advice how to undertake cashless treatment for his insured daughter through OP1 policy who advised him to take treatment anywhere on payment of cash and later on send bills alongwith medical documents with claim form to OP1’s Claims Department for necessary reimbursement. The complainant submitted that he and EDMC informed OP1 authorized person Miss Jyoti Yadav about hospitalization of his daughter but the said person did not disclose to the complainant at that time that OP1 would not pay any amount as reimbursement to the complainant for treatment in EDMC. The complainant has further stated that his daughter was hospitalization in EDMC from 22.07.2015 to 25.07.2015 and after medical test of blood, urine and ultra sound etc was diagnosed with “acute pyrexia with repeated vomiting and dehydration and abdominal pain with hepatitis under evaluation”. The complainant spent Rs. 30,334/- on the treatment of his daughter in the said duration and submitted the claim form alongwith documents and medical bills with OP1 in August 2015 vide claim  No. 20158146852.C10. However the claim incident FIR  No. 201581464852.C10 of the complainant was repudiated by OP1 vide repudiation letter dated 27.08.2015 with given reason that “the patient was admitted in East Delhi Medical Centre, Shahdara, Delhi on 22.07.2015 which falls under the “Excluded Hospital List” attached alongwith policy. The said hospital is excluded w.e.f. 01.04.2014.” But on or after the renewal of the complainant medishield insurance policy, any list of excluded hospital was not sent by OP1 and OP2 to the complainant. “Excluded Hospital List” clause in “when will the policy not pay” of individual medishield policy is also not given by OP1 in its brochure. Thereafter complainant sent several mails and letters to OP1 on 05.01.2016 and 17.02.2016 to reconsider his claim form but OP1 repudiated his claim by giving sole reason of the complainant having availed treatment of his daughter in hospital featuring in the list of “Excluded Hospital”. The complainant submitted that the OP1 has its own set of rules and regulations not disclosed to customers at the time of selling or renewing health insurance policy to cheat them and therefore the OP2 had also not disclosed “Excluded Hospital List” to the complainant at the time of selling and renewing of individual medishield policy which act is deficieny of service on the part of OPs causing mental agony, stress and harassment to the complainant. Therefore vide the present complaint the complainant has prayed for issuance of directions to the OPs to reimburse the mediclaim amount of Rs. 30334/-, alongwith Rs. 30,000/- towards compensation for mental agony and harassment and Rs. 20,000/- towards litigation charges thereby a total relief prayed for to the tune of 80,334/-.

Complainant has attached copy of policy card, medical bill synopsis, medical bills of treating Doctor Vikas Jain dated 21.07.2015 to 25.07.2015, copy of bill summary of EDMC, copy of lab reports and charges, copy of lab reports issued by Dr. Lal Path lab, copy of diet plan issued by EDMC, copy of ultrasound report, blood report, urine report, copy of claim form dated 13.08.2015, copy of discharge summary, copy of repudiation letter dated 27.08.2015, copy of letter dated 05.01.2016 from complainant to OP, copy of letter dated 18.01.2016 from OP to the complainant, copy of letter dated 10.02.2016 from complainant to OP, copy of letter dated 24.02.2016 from OP to the complainant and copy of two pages of policy brochures.

2. Notices were issued to OPs on 27.07.2016 and OP1 & OP2 entered appearance on 30.08.2017 and 21.09.2017 respectively and filed their separate written statement on 06.10.2017. OP1 took the preliminary objection that the claim lodged by the complainant under insurance contract was rejected vide repudiation letter dated 27.08.2015 in accordance with T & C of insurance policy in which there was an attachment of ‘Excluded Hospital List’ which was supplied to the complainant alongwith ‘Yearly Medishield Policy Card’ and therefore the repudiation cannot be termed as deficiency of service or negligence. The OP1 contended that the complainant was at fault in getting her daughter admitted to EDMC without checking with the OP1 about the status of coverage vis-à-vis EDMC. Had the complainant contacted the OP1 in timely manner on admission of his daughter to EDMC on 22.07.2015, the factum of EDMC being in the ‘Excluded Hospital List’ would have been made known to him but instead the complainant as per his own admission contacted the OP1 only on 11.08.2015 i.e. after more than 15 days of discharge of his daughter from the said hospital. OP1 took the defence that the “insurance contract is a species of commercial transaction and while deciding the dispute between the insured and insurer, the terms and conditions have to be construed strictly” as held by Hon’ble Supreme Court and Hon’ble NCDRC in plethora of judgments but the same was violated by the complainant by getting his daughter admitted in a ‘Excluded Hospital List’ for which liability the OP1 stands exonerated. OP1 objected to the maintainability of the complaint of non-joinder of EDMC as necessary party since it was EDMC which had misrepresented the complainant and did not disclose that they were in the ‘Excluded Hospital List’ of OP1 w.e.f. 01.04.2014. OP1 did not comment on the veracity of the contention raised by the complainant pertaining to the illness, hospitalization and treatment undergone by Ms. Prachi Jain, daughter of the complainant at EDMC. However, OP1 contended that once the complainant was informed about the non availability of ‘cashless facility’ by OP1, he should have enquired from OP1 about the status of EDMC but the complainant behaved in most negligent manner. OP1 further denied existence of any such person as Ms. Jyoti Yadav alleged by the complainant to be linked with OP1 as its authorized person. Lastly, the OP1 contended that the complainant is not denying any where in his complaint that he was having the policy schedule which clearly states that the ‘Excluded Hospital List’ should be verified from website before hospitalization and laid emphasis on the complainant’s letter to OP1 dated 10.02.2016 in which the complainant has nowhere stated that he was not aware of the concept of ‘Excluded Hospital List’ but merely stated that during medical emergency, the patient was taken to the complainant’s nearest available hospital and admitted that his attention did not go to the issue whether EDMC was in the ‘Excluded Hospital List’ or not thereby impliedly admitting to his negligence in view of which the complaint is liable to be dismissed.

OP1 has attached copy of the individual Medishield Policy Schedule alongwith policy terms and conditions and list of excluded hospitals wherein the hospital in question EDMC has been excluded from the list of approved hospitals w.e.f. 01.04.2014.

3. Written statement was filed by OP2 in which she took the preliminary objection that the complainant is not a consumer of OP2 since he has not paid any amount to OP2 for any insurance policy of related services and that the said insurance policy was not sold by OP2 to the complainant. OP2 contended that the complainant did not inform her about the illness and treatment of his daughter and had admittedly registered his claim with OP1 telephonically. OP2 further alleged that the complainant deliberately went to EDMC which was the Excluded Hospital in the List of OP1 when the same was supplied to the complainant at the time of issuance of insurance. OP2 lastly contended that the complainant never approached her for any kind of assistance and that the process of availing cashless claim is business between hospital and insurance company with OP2 having no role in the claim process and stated that the matter was entirely between the complainant and OP1 and OP2 is not responsible for any of the transactions/ acts and therefore prayed for dismissal of the present complaint as not maintainable against her.
4. Rejoinder was filed by the complainant to the written statement of OP1 in rebuttal to the defence of OP1 in which the complainant submitted that the policy documents and ‘Yearly Medishield Policy Card’ were not supplied to the complainant by either of the OPs and the complainant was not at fault in getting his daughter’s treatment at EDMC because the complainant had contacted OP1 through its authorized person Ms. Jyoti Yadav as well as OP2 at the time of admitting his daughter at EDMC and OP2 had advised him to take treatment anywhere upon cash payment and sent the bills and medical documents alongwith claim form to OP1’s Claim Department for reimbursement and OP2 did not disclose the concept of ‘Excluded Hospital List’ to the complainant at that time. Complainant further submitted that OP2 had also sent an e-mail to OP1 office for reimbursement but the authorized person of OP1 did not disclose to the complainant that OP1 would not reimburse any amount incurred by the complainant towards medical expenses on his daughter at EDMC. The complainant rebutted the defence of OP1 by submitting that he had not violated any terms and conditions of medishield policy and had not made EDMC a party to the complaint because of proper treatment provided by it to his daughter. Complainant further submitted that OP2 was registered as agent of OP1 and therefore both were liable for each other’s acts. Lastly, the complainant submitted that the OP2 had only shown a brochure published by OP1 to the complainant at the time of renewal of policy and ‘Excluded Hospital List’ and ‘When Will The Policy Not Pay’ of Individual Medishield Policy were not disclosed in the brochure.
5. In the Rejoinder to the written statement of OP2, the complainant specifically denied receipt of any insurance policy and ‘Excluded Hospital List’ having being supplied to the complainant by either OP1 or OP2 at the time of renewal of insurance policy and no proof of service of the same has been attached by either of the OPs. The complainant admitted to the receipt of claim form having being provided by OP2 for reimbursement and mails sent by OP2 to OP1 for reimbursement of claim amount and urged that he would not have sent these e-mails if the complainant’s claim was not maintainable. The complainant has attached copy of e-mails dated 08.10.2015 and 12.10.2015 alongwith both rejoinders.
6. Evidence by way of affidavit was filed by the complainant reiterating his grievance against the OPs and exhibited the documents attached alongwith the complaint from mark A to G.
7. Evidence by way of affidavit was filed by OP1 and OP2 reiterating their respective defence and OP1 exhibited true copies of the policy schedule, terms and condition and Excluded Hospital List and repudiation letter dated 27.08.2015 as OP1 /1, OP1/2, OP1/3 and OP1/4 respectively.
8. Written arguments were filed by the complainant in reassertion and reinforcement of his grievance against the OPs and placed reliance on the judgment of UPSCDRC in the case of Suman Bhartya Vs Ansal Properties and Infrastructure Ltd and Ors I (2016) CPJ 147 UP in which the UPSCDRC held that the onus was on the builder to prove the factum of service of notice which has not been discharge by them despite opportunity and thereby deficiency has been proven. Complainant further relied upon judgment of Hon’ble NCDRC in National Insurance Co. Ltd Vs Prafulaben Shah II (2015) CPJ 649 (NC) in which the Hon’ble National Commission had held that agent acting on behalf of insurance company whether genuinely and fraudulently is vicarious liability of insurance company.
9. Written arguments were filed by OP1 in justification of its repudiation of claim of the complainant on grounds of treatment under taken by the complainant in an excluded hospital and contacting the OP1 and lodging claim after 15 days of discharge of his daughter for which lapse, negligence and carelessness of the complainant, the OP2 cannot be held liable. OP1 placed reliance on the landmark judgment of Hon’ble Supreme Court of Oriental Insurance Company Ltd vs Sony Cheriyan (1999) 6 SCC 451  in which Hon’ble Supreme Court held that insurance policy should be strictly construed to determine the extent of insurers liability and the insured cannot claim anything more then what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. OP1 further relied upon the judgment of Hon’ble Supreme Court in the case of United India Insurance Co. Ltd Vs Harchand Rai Chandanlal (2004) 8 SCC 644 in which the Hon’ble Supreme Court held that the terms of policy shall govern the contract between the parties and they will have to abide by the definition given therein, and all those expression appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted.
10.  OP2 filed written arguments in reassertion of her defence as complainant not being consumer of OP2 or having availed any service for consideration from OP2 apart from the defence taken in her written statement.
11.  During the course of oral arguments the counsel for OP1 argued for OP2 as well acknowledging her as its agent and submitted that the complainant nowhere in the entire complaint mentioned non receipt of cover note of policy schedule or ‘Excluded Hospital List’ and even in his letter dated 05.01.2016 and 10.02.2016 to OP1, the complainant did not mention about ‘Excluded Hospital list’ or non receipt or policy or stated that he was not aware of not having being covered and nowhere has he filed any such e-mail from EDMC to OP1 about intimation of admission of his daughter at EDMC because had that been the case, the OP1 would have then and there informed the complainant of the said hospital having being delisted w.e.f. 01.04.2014 and argued that it was EDMC which kept the complainant in dark about its uncovered/delisted status with OP1 and deliberately was not made a party by the complainant in the present complaint. OP1 further argued that the copy of e-mails filed by the complainant alongwith the rejoinders to the written statement of OP1 and OP2 were inadmissible in law as the same were unaccompanied by a mandatory certificate under section 65 B of Indian Evidence Act 1872.
12.  We have heard the rival contentions of both the parties and have thoroughly perused documentary evidence placed on record.

It is evident on the face of record that the complainant did not allege non receipt of the policy terms and condition or cover note anywhere in his complaint which was filed in July 2016 i.e. after almost one year of repudiation of claim by OP1 wherein the ground for repudiation was clearly laid down by OP1 as claim repudiated since patient was admitted in EDMC which falls under ‘Excluded Hospital List’ vide repudiation letter dated 27.08.2015 and reiterated its rejection vide letter dated 18.01.2016 and 24.02.2016. It was only post filing of written statement by the OPs that the complainant in his rejoinder took the arguments of non receipt of policy cover note etc in rebuttal. It is highly unlikely that as per own admission of complainant when the complainant was a regular customer of OP1 of taking insurance cover year after year, he would not have insisted on at least copy of cover note or having been provided the same by OP1 once the premium cheque was paid to OP2 for renewal of the policy. The complainant has not able to establish or place on record any communication between the EDMC and OP1 as mentioned by him regarding intimation of admission of his daughter to OP1 and by his own admission in his letters dated 05.01.2016 and 10.02.2016 to OP1 he had expressed his reservation and dissatisfaction on the reason for repudiation of claim and prayed for reconsideration of the same since he had taken his daughter in medical emergency to the nearest available hospital from his house not being conscious or aware of the whether the same is on the OP1 list of admitted hospitals. Nowhere in the said letters has the complainant raised any objection to non receipt of policy particulars from OP1. The e-mails filed by the complainant with his rejoinder are also unaccompanied with certificate under Section 65 B of Evidence 1872 as mandated by Hon’ble Supreme Court in its landmark judgment of P.V. Anvar Vs Basheer. Even otherwise the e-mails are inconclusive in content to put culpability on any of the OPs. Further the complainant had admittedly intimated the OP1 about the claim after 15 days of discharge of his daughter for reimbursement of claim by which time OP1 could not have helped him in any manner in contravention of the clearly laid down terms and conditions of the policy which stand is reinforced by the settled law as per judgments of Hon’ble Supreme Court cited and relied upon by the OP1 in its defence that terms and conditions of the policy shall govern the contract between the parties. The complainant has failed to make any cogent ground for deficiency of service against either of the OPs which is a necessary ingredient for allowing a consumer complaint on merits.

13.  We therefore do not find any merits in the present complaint and dismiss the same with no order as to costs.                          
14.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
15.   File be consigned to record room.
16.   Announced on  31.08.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member