`DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FAZILKA.
Complaint No. CC/30/2023
Instituted On : 03.07.2023
Decided On : 29.07.2024
Ashok Kumar aged about 63 years S/o Balwant Dass, Resident of Village Nukerian, Tehsil and District Fazilka. Mobile no.9779747058. ……...Complainant
Versus
- M/s Cholamandalam M.S. General Insurance Company Ltd, Chola MS Help-Health Claims Department, Shaw Wallace Building, Old no. 154, New number 319, Second Floor, Thambu Chetti Street, Parrys Corner, Chennai-600001 through its Manager/in-charge/any other designated officer.
- M/s Cholamandalam M.S. General Insurance Company Ltd, Regional Office SCO.2463-2464, 2nd Floor, Sector 22-C, Chandigarh through its Manager/in-charge/any other designated officer. ...Opposite Parties.
C.C. No.30 of 2023
Complaint under Section 35 of the Consumer Protection Act, 2019.
Quorum: Sh.Vishal Arora, President.
Sh.Raghbir Singh Sukhija, Member.
Smt.Tajinder Kaur, Member.
Present: Sh.Raj Kumar Verma, Counsel for Complainant.
Sh.Harish Chawla, Counsel for Opposite Parties.
ORDER
(Vishal Arora, President):
Complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against opposite parties for seeking directions to reimburse the amount of Rs.31,988/- alongwith interest @12% per annum from the date of filing of the present complaint till actual realization besides Rs.20,000/- as compensation on account of suffering undergone by him alongwith litigation expenses to the tune of Rs.11,000/-.
- Briefly stated, the case of complainant is that he purchased a group health insurance policy from the opposite parties under the plan namely Family Floater/AROGYA1000N and the same was effective from 01.01.2022 to 31.12.2022. It has been pleaded that the complainant also insured his wife
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namely Asha Rani in this policy and paid the total premium of Rs.30,197/-. The sum insured was Rs.10,00,000/- and insurance certificate bearing no. 2876/00106711/000001/000/01 was issued to the complainant. During pendency of insurance policy, the complainant suffered from some left eye problem and after examination from Platinum Nursing Home Private Ltd, Kotakpura road, Sri Muktsar Sahib, he was advised intra ocular lens implantation. Accordingly, he was admitted on 04.10.2022 in the said nursing home and got operated his left eye with intra ocular lens implantation on the same day and discharged on 05.10.2022. The said hospital is an empanelled hospital and after the surgery of complainant, the hospital submitted all the bills to opposite parties who refused to entertain the direct claim on the pretext that complainant would be reimbursed directly. As per assurance given by opposite parties, the complainant paid all the bills of Rs. 31,988/- as detailed in reimbursement letter from his own pocket to the said hospital and was accordingly issued reimbursement certificate by said hospital. Thereafter, the complainant submitted all the relevant documents including insurance certificate, claim form, cancelled cheque, copy of Aadhar card, Pan card and bills of expenditure and discharge summary dated 05.10.2022 with request to re-imburse the said amount but opposite parties declined his request vide
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Email dated 18.01.2023 on the ground that the detail regarding pre-existing disease should be furnished by the proposer in the proposal form/declaration at the bank branch during policy purchase. The complainant had been purchasing group insurance policies from opposite parties since January 2020 continuously till 31 December, 2022 and has not claimed any amount except the claim in question undergone by him in year 2022. Pleading deficiency in service and unfair trade practice, the complainant has prayed for acceptance of the present complaint.
3. The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.07.2023, complaint was admitted and notice was ordered to be issued to the opposite parties.
- the opposite parties have appeared and filed written reply to the complaint raising certain preliminary objections interalia to the effect that the complainant purchased a group health policy from opposite party no.2 through Punjab National Bank vide policy no.2876/00106711/000001/000/01 which was valid from 01.01.2022 to 31.12.2022. Complainant lodged claim which was registered as claim number
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2876107382. Opposite parties deputed investigator namely “Oracle Investigation Agency” to verify the genuineness of claim and obtain papers for further processing who submitted final report dated 8.11.2022 with supporting paper in the form of certificate issued by Platinum Nursing Home Private Ltd, as well as self declaration note written and signed by insured himself perusal of which reveals that insured has underwent right eye cataract surgery in 2018 which is prior to inception of the policy and this fact has not been disclosed in the proposal form while proposing for insurance by the insured. And in view of this non disclosure of material information, the contract of insurance become void and no claim is payable under this policy as per condition number 4.11 and claim of the complainant has been rightly repudiated.
5. The complainant along with the present complaint has placed on record Copies of, Policy cover note Ex.C-1, Claim form Ex.C-2, Discharge Summary Ex.C-3, Reimbursement certificate Ex.C-4, Hospital and Medical Bills/receipts Ex.C-5, Email Ex. C-6, Aadhar card Ex.C-7 and Pan Card Ex.C-8. Per contra, opposite parties alongwith written statement have placed
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on record, Affidavit of Sh.Sunil Gupta of Insurance Company Ex.OP-1&2/1, repudiation letter dated 05.01.2023 Ex.OP-1&2/2, Discharge summary Ex.OP-1&2/3, self declaration Ex.OP-1&2/4 and investigation report Ex.OP-1&2/5.
6. We have heard the learned counsel for the parties and have also carefully gone through the record. The learned counsel for complainant and opposite parties have argued on the same lines as per their respective pleadings.
7. The issuance of group health insurance policy bearing no.2876/00106711/000001/000/01 covering the complainant for the period 01.01.2022 to 31.12.2022 is not disputed by opposite parties. The only ground taken by the opposite parties for repudiation of the claim of the complainant is that as per report of investigator supported by paper in the Form of certificate issued by Platinum Nursing Home Private Ltd as well as self declaration note written and signed by insured himself, it is found that the insured had underwent right eye cataract surgery in 2018 which is prior to inception of the prior policy and this fact has not been disclosed in the proposal form by the
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insured and no claim is payable under condition no.4.11 of the policy which has been rightly repudiated.
The said plea of insurance company carries no weight as it has neither been pleaded nor proved that previous cataract surgery of right eye in year 2018 has any nexus with present left eye cataract surgery in year 2022. Moreover, it is a matter of common knowledge that cataract is generally seen developing in people of age group above 50 years in one eye after another and age factor is primarily responsible for the same. So, non disclosure of previous cataract surgery is purely immaterial and is of no consequence having no nexus with the present cataract surgery in 2022 on account of which the present claim has arisen and repudiation of claim on this count is not justifiable. If one has got medical treatment for cataract in right eye in 2018, that will not debar him from claiming reimbursement of the amount spent on medical treatment for another eye in year 2022.
It has been vehemently argued by the Ld.Counsel for the complainant that the terms and conditions of the policy were never supplied to the complainant at the time of proposing and selling the policy which stands corroborated from policy cover note Ex.C-1 which clearly goes on to prove
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that policy terms & conditions containing alleged condition no.4.11 were not part & parcel of cover note Ex.C-1 supplied to the complainant by the opposite parties. Perusal of file also reveals that the claim of the complainant has been repudiated by opposite parties as per condition no.4.11 of the terms and conditions of the policy but no such terms and conditions containing the alleged condition no.4.11 have been placed on record by the opposite parties. Even the opposite parties have failed to produce on record any postal/courier receipt or any other documentary evidence to prove that the terms and conditions of the insurance policy in question were ever supplied to the complainant. The insurance company merely by quoting the alleged condition in the repudiation letter and the written statement cannot get discharged from the onus to prove the delivery of terms and conditions of the policy to the insured to make them binding on the insured. It is a well settled law that onus to prove that the terms and conditions were supplied to the insured is on the Insurance Company and where terms and conditions of the policy were not supplied to the insured, the same are not binding on the insured.
8. From the aforesaid discussion, it transpires that the genuine claim of the complainant has been wrongly repudiated by the opposite parties.
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It is usual with the insurance companies to show green pastures to the consumers when they are to sell their policies. But however when it comes to the payment for claim, they invent all sort of excuses to deny the claim. Reliance in this connection can be placed on the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) which is fully attracted, wherein it was held that Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims.
9. Therefore, repudiation of the claim of complainant in such an event is not justified at all and repudiation letter Ex.OP-1&2/2 is hereby quashed and the complainant is held entitled for a claim of Rs.31,988/- spent by him vide hospital bill and reimbursement certificate Ex.C-4 to Ex.C-5 alongwith suitable interest and compensation.
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10. As regards interest, reliance can be placed on law laid down by Hon'ble National Commission in case titled as M/s. New Mark Knitwears Vs. Universal Sompo General Insurance Company Ltd. and others, Consumer Case No.2990 of 2017 decided on 25.04.2023.
11. In view of what has been discussed above, the present complaint is allowed against opposite parties with Rs.7,000/- as consolidated compensation for deficiency in service, unfair trade practice, harassment, mental tension & agony suffered by the complainant due to wrongful repudiation of claim of the complainant and Rs.3000/- as litigation expenses. The opposite parties are directed to pay to the complainant a sum of Rs.31,988/-(Thirty One Thousand Nine Hundred Eighty Eight only) along with interest @ 9% per annum from the date of discharge of complainant from the hospital i.e. 05.10.2022 till actual realization within a period of forty five days from the date of receipt of copy of this order. If the payment is not made within the stipulated period, opposite parties shall be liable to pay the awarded amount with interest @ 12% per annum. Copy of order be issued to
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the parties free of costs. File be indexed and consigned to the record room.
ANNOUNCED IN THE OPEN COMMISSION:
29th Day of July, 2024
(Vishal Arora)
President
(Raghbir Singh Sukhija)
Member
(Tajinder Kaur )
Member
