Haryana

Panchkula

CC/302/2017

JOGENDRA SHARMA - Complainant(s)

Versus

M/S MAX BUPA HEALTH INSURANCE CO.LTD. - Opp.Party(s)

PANKAJ CHANDGOTHIA

31 Jan 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                                       

Consumer Complaint No	:	302 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	31.01.2019

 

Jogendra Sharma, resident of #152, Sector 7, Panchkula.                                                                                                         ….Complainant

 

Versus

1. M/s Max Bupa Health Insurance Co. Ltd., through its Manager, Corporate Office: B1/1-2, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi 110044.
2. M/s Dhawan Hospital, through its Medical Officer, Plot No.1, Sector 7, Panchkula-134109.  

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Satpal, President.

Mr.Jagmohan Singh, Member.

Ms. Ruby Sharma, Member.

 

For the Parties:   Mr. Pankaj Chandgothia, Advocate for the complainant. 

                        Mr. Chetan Gupta, Advocate for the OP No.1.

                        None for the OP No.2.

 

ORDER

(Satpal, President)

1.     The brief facts of the present complaint are that the complainant took a Max Bupa Health Companion Policy from the OP No.1 at Panchkula (an officer of the company came to the residence of the complainant), effective from 27.01.2016 for himself, his wife and two children covering the risk to the tune of Rs.3 lacs. Unfortunately the complainant’s son Tarun Sharma suffered from abdomen pain, vomiting, fever and headache upon which he was got taken to Dhawan Hospital, where he was advised admission by the doctors. Prior to that, he was examined in the OPD. The patient was admitted in the OP No.2 hospital and discharged on 05.10.2017. The complainant submitted the claim form to the OP No.1 agent at Panchkula for a total claim of Rs.29,114/-. The OP-Insurance Company has wrongly rejected the genuine claim on untenable grounds. A perusal of the letter reveals that the company has rejected the claim on the ground that ailment of the complainant was due to “polyps” and therefore the claim was said to be not payable. The OP company has not even mentioned as to in which organ of the body, the “polyps” was existing. The discharge summary has no such narration or cause of illness. There is no mentioned of “polyps” in the prescription slip also. The Insurance Company has also not cited any medical opinion in this regard. However, the Ops repudiated the claim of the complainant in a mechanical manner without due application of mind. The alleged reason for repudiation of claim by the OP is un-reasonable and the repudiation amounts to deficiency in service and unfair trade practice. Upon the wrongful rejection of the cashless claim, the complainant had to pay the hospital bills by taking loan from friends on high rate of interest. It is the usual tendency of the Ops to reject the genuine claims of the insured. They discharge higher premiums without having any intention to honour the genuine claims. In this manner, the Ops are usurping the hard earned money of the public and using it for their own profit and hence they are not fulfilling their own aims and objects and of the law of indemnification and insurance purpose; this act and conduct of the Ops amount to deficiency in service on their part; hence, this complaint.

2.     Upon notice, the OPs have appeared and contested the complaint by filing their separate written statement.

        It is stated by OP No.1 in the preliminary objections that the OP No.1 Max Bupa Health Insurance Co. Ltd., is a company registered under Section 3 of the Insurance Act, 1938, having its registered Office at Max House, 1 Dr. Jha Marg, Okhla, Phase-III, New Delhi 110020 and is carrying on Health Insurance business and that the present complaint is not maintainable. The complainant has attempted to misguide and mislead the Hon’ble Forum. In fact, the complainant has suppressed the material facts from this Hon’ble Forum and as such the complaint is liable to be dismissed. The policy under question Health Companion was issued by the OP Company on the basis of information provided by the assured during telephonic conversation dated 27.01.2016 held by the complainant with Health Insurance counselor-telesales of the company. It is further pertinent to mention here that in case the Policy Holder wants to continue with the policy than on the payment of next years premium a different policy number is issued. The present policy number in question is 30496177201600. The OP company has acted strictly as per the policy terms and conditions and have acted within the four corners of the statutory provisions, no case of deficiency in services can be said to have arisen, and as such the present complaint is not maintainable before this Hon’ble Forum. It is noteworthy that on the basis of the information received during telephonic conversation dated 27.01.2016 held by the complainant with Health Insurance counselor-telesales of the company, the subject policy was issued to the complainant. At the time of scribing (without admitting) the person who scribes (amanuensis) is treated as representative of person who has signed document and not the representative of the company, thus after signing the document the person cannot be released from signed document and lead anything which is contrary to terms stated in written document. The present complaint is not maintainable. As per the terms of the policy contract if the policy is not suitable, the policy holder may get his/her policy reviewed by returning the policy and policy documents within 15 days from the day the policy holder received the policy. The insurance company will return the premium paid to the policy holder after making certain deductions specified therein. In the present case, the policy along with the policy documents was dispatched to the policy holder and the same was duly received as admitted. The complainant after the receipt of the subject policy and policy documents did not approach the replying OP and got his subject policy reviewed/cancelled within free look period implying that the complainant duly accepted the subject policy and its documents with its terms and conditions. The policy holder never approached the replying opposite party with any grievance pertaining to the subject policy and its terms and conditions. The complainant is bound by the policy contract and has given up relinquish/waved his right by not exercising the free look provision. The OP as per Clause 4(1) and 6(2) of the IRDA (Protection of Policy Holder’s Interest) Regulations, 2002, sent the policies and policy documents along with information summary sheet having details of telephonic conversation dated 27.01.2016 of the complainant with Health Insurance counselor telesales of the Company to the policy holder giving him an 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. The present complaint is liable to be dismissed on ground that the under the policy no benefit is payable for the claim intimated to the OP company. As per the investigation of the company it was found that the complainant’s son Tarun Sharma had been diagnosed of Gastroenteritis due to multiple GB polyps and had undergone treatment for the same. The said treatment is not covered for 24 months from the commencement of the policy and the same is covered from the commencement of the 3^rd policy year only as per the policy terms and conditions of the insurance policy. Insurance is a contract between the Insurer and Insured and so both are bound by its terms and conditions. Hence, this complaint is liable to be dismissed because the claim which is the subject matter herein is travelling beyond the said terms and conditions. Further submitted that in the policy certificate issued to the complainant specific waiting period is mentioned as 24 months, however, it is pertinent to note that the claim was received by the replying OP within 24 months of issuance of the policy. Thus, same is not payable as per terms and conditions of the policy. The complainant has not acted in good faith with respect to subject of this complaint and has approached the Hon’ble Forum with unclean hands.

        Further, the complainant has concealed and suppressed material and relevant facts of the case. The complainant with mala fide and dishonest intention not only concealed the material facts from the Hon’ble Forum but also twisted and distorted the same to suit his convenience and to mislead this Hon’ble Forum.

        Further, 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 replying opposite party. In the present case, the OP 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. Thus, the words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitution. The Forum cannot pass any order in contravention to the terms and conditions of the policy contract. It is stated that the policy is a legal contract between the policy holder and insurance company and the parties to the said contract are bound by its terms and conditions. Further submitted that the complaint has been filed with ulterior motive and mala fide intention to cause harassment and prejudice to the opposite party, which is a company of high credibility and repute and to extract money from it without just cause or valid reason.  

        Further submitted that the assured had not approached the OP during the free look period with any grievance regarding the policies or terms and conditions, meaning thereby that the assured agreed to the policy and terms and conditions. The OP company had received pre-authorization for cashless treatment from Dhawan Hospital for the treatment of son of the complainant Tarun Sharma. The OP company had given initial approval for Rs.11,000/- vide letter of authorization dated 02.10.2017 and sought additional details vide letter dated 05.10.2017. However, it was denied with reason “the details submitted along with pre-authorization suggest that patient has adverse medical condition due to which it is not possible to ascertain the liability at this juncture”.

        Later the complainant submitted a health claim to the company for treatment of his son. Under the policy no benefit is payable for the claim intimated to the OP company. As per the investigation, it was found that the complainant’s son had been diagnosed of Gastroenteritis due to multiple GB polyps and had undergone treatment for the same. The said treatment is not covered for 24 months from the commencement of the policy and the same is covered from the commencement of the 3^rd policy year only as per the policy terms and conditions the treatment. The Op No.1 being insurance company pays the claim amount from the common pool of the policy holders and payment of one wrongful claim adversely affects thousands of other rightful policyholders. The repudiation of the claim of the complainant is just, proper, legal, valid and made on the grounds of non-disclosure of material facts. The present complaint is an abuse of the process of law and is liable to be dismissed in accordance with Section 26 of the Consumer Protection Act, 1986.

        It is denied that the OP company had repudiated the claim of the complainant on any false grounds; thus, there is no deficiency in service on the part of OP No.1 and as such, the complaint of the complainant is liable to be dismissed with costs. 

        The OP No.2 has stated that Master Tarun Sharma S/o Mr. Joginder Sharma was seen in OPD and was diagnosed a case of Gastroenteritis with Moderate Dehydration. The patient was constantly vomiting, hence he was advised admission. The patient was admitted on 02.10.2017 and treated by the specialists and was discharged on 05.10.2017. The multiple Gall Bladder Polyps diagnosed on ultrasound abdomen was an accidental finding. The Gall Bladder Polyps do not cause Gastroenteritis, hence these polyps had no role in the cause and management of the patient. The Gall Bladder Polyps as per the studies available in the medical books can be considered as pre-cancerous but not cause for gastroenteritis. Nowhere in the Indoor Case history the Gall Bladder Polyps were mentioned as cause of ailment.

3.     The ld. counsel for the complainant has tendered affidavit as Annexure CA along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, ld. counsel for the OP No.1 tendered affidavit Annexure R1/A along with documents Annexure R-1/1 to R-1/6 and closed the evidence. Sh. Rakesh Jaswal, Medical Superintendent (Authorized Representative for OP No.2) has tendered affidavit Annexure R2/A along with document Annexure R-2/1 and closed the evidence. 

4.     The complainant while reiterating the version contained in the complaint controverted the stand of OP No.1 which has been taken in the written statement by filing the rejoinder/replication.

5.     We have heard the ld. counsel for the complainant and ld. counsel for the Op No.1 and gone through the record minutely and carefully.

6.     The ld. counsel for the complainant reiterated the facts and version as contained in the complaint, affidavit Annexure CA and documents as Annexures C-1 to C-5 and contended that the hospitalization of the said Tarun Sharma was not on account of Polyps as no narration of the same finds mentioned in the prescription slip as well as discharge summary Annexure C-3. The ld. counsel asserted that the said Tarun Sharma was admitted in the hospital on account of abdomen pain vomiting, fever and headache and he was not admitted and provided the treatment in respect of polyps. Concluding the arguments the ld. counsel placed reliance upon the affidavit Annexure R2/A of the treating doctor to negate and falsify the version of the OP No.1.

        On the other hand, the ld. counsel for the OP No.1 while controverting the version of the complainant reiterated the facts as contained in the written statement, affidavit Annexure R1/A and documents Annexure R1/1 to R1/6 and contended that the policy in question was issued to the complainant including his wife and two sons on the basis of the information provided by the complainant through telephonic conversation dated 27.01.2016 to the telesales of the company and that the complainant was at liberty to revoke or return the policy in question within free look period i.e. 15 days. The ld. counsel stated that the complainant did not return the policy within the free look period and as such he is bound with the terms and condition as contained in the insurance policy. The ld. counsel further stated that said Tarun Sharma insured was found having multiple GB Polyps on account of which he was not eligible to raise a claim within the period of 2 years from the commencement of the policy. In this regard, the ld. counsel invited the attention of this Forum towards the exclusion Clause No.3 vide which no ensured person can raise  a claim within a period of 24 months from the commencement of the policy in respect of ailments, namely,  lumps/cysts/nodules/polyps/internal tumors. It was further pointed out that the investigation made by the company detected that Tarun Sharma had been diagnosed of Gastroenteritis due to multiple GB Polyps and had undergone treatment for the same. The ld. counsel placed reliance upon the law laid down in the matters of United India Insurance Co.Limited Vs. Harchand Rai Chand Rai Chandanlal I(2003) CPJ 393 & Vikram Greentech (I) Ltd. & Anr. Vs New India Assurance Co.Ltd.II (2009) CPJ 34 & Export Credit Guarantee Corporation of India Ltd. vs. Garg Sons International [2003 (1) SCALE 410)] and Suraj Mal Ram Niwal Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. [(2010) 10 SCC 567]. The ld. counsel further placed reliance upon the law laid down in the case titled as Reliance Life Insurance Co. Ltd. Vs. Madhavacharya (Revision petition no: 211 of 2009) wherein it was held by the National Commission as follows “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”. The ld. counsel asserted that there was no deficiency on the part of the OP and in this regard placed reliance Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66.

7.      After hearing both the parties and perusing the relevant record available on the file, it is evident that complainant took a medi-claim policy namely, Max Bupa Health Companion Policy from OP No.1 effective from 27.01.2016 for himself, his wife and two children covering the risk to the tune of Rs.3 lacs. The complainant’s son namely Tarun Sharma fell ill on account of abdomen pain and fever upon which he was hospitalized in the hospital i.e. Dhawan Hospital (OP No.2) w.e.f.02.10.2017 and discharged on 05.10.2017. The complainant submitted the claim form Annexure C-4 / R-1/3 for reimbursement of an amount of Rs.29,114/- on account of expenses incurred by him during the treatment of his son. The OP No.1 rejected the claim stating that the ailment of said Tarun Sharma son of complainant was due to Polyps which was not covered as per exclusion Clause No.3 for a period of 02 years from the date of commencement of the policy. 

8.      It is relevant to mention here that the OP No.1 has not disputed the factum of hospitalization of the insured Tarun Sharma during the validity of the insurance policy. The OP No.1 has repudiated the claim only on the ground that Tarun Sharma was diagnosed of Gastroenteritis due to multiple GB Polyps and had undergone treatment for the same. The OP No.1 has denied the claim as revealed from Annexure R1/6 taking the shelter of detection of polyps in ultra-sound report, which is reproduced as under:-

“AS PER SUBMITTED DOCUMENTS AND INVESTIGATION DONE BY US IT WAS FOUND THAT PATIENT HAS MULTIPLE GB POLYPS AS PER USG REPORT AND CURRENT AILMENT IS DUE TO THAT ONLY. ANY TREATMENT RELATED TO POLYP IS NOT COVERED UNDER CLAUSE 3c FOR FIRST TWO YEARS UNDER THE POLICY TERMS AND CONDITION THE CLAIM IS REJECTED.”

        The ld. counsel has also invited the attention of this Forum towards the details of Gallbladder Polyps as contained in Mark-A wherein the symptoms of gallbladder polyps has been given as under:-

• Occasional pain in the right part of the upper abdomen (hypochondrium)
• Nausea
• Vomiting

 

9.     We further find no dispute with regard to the terms and conditions of the policy. It is not the case of the complainant that he is not bound by the terms and conditions of the policy or that he did not receive the terms and conditions of the policy. His only contention is that Tarun Sharma was not hospitalized on account of ailments of Gallbladder Polyps.

10.    We have gone through the prescription slip Annexure C-2 case summary/discharge summary Annexure C-3 which do not contain any remarks about the presence of gallbladder polyps. As per discharge summary Tarun Sharma was diagnosed as a case of “acute febrile illness with? viral gastroenteritis? Dengue fever.” Hospitalization summary as contained in the discharge summary (Annexure C-3) is reproduced as under:-

“This 8 years male presented in Emergency in this hospital with above said complaints. All the necessary investigations were done & patient was diagnosed as a case of Acute Gastroenteritis.”

        Further in Mark-A as relied upon by the OP it has been mentioned that in many cases, people with gallbladder polyps show no symptoms. Thus, we find no merit and substance in the version of the OP No.1 while rejecting the genuine claim of the complainant. The contention of the OP No.1 has been found further negated and falsified in view of the deposition made by Dr. Rakesh Jaswal, Medical Superintendent, Dhawan Hospital of OP No.2 vide his affidavit Annexure R2/A. Said Dr. Rakesh Jaswal vide Annexure R2/A has categorically deposed as under:-

“4. That the multiple Gall Bladder Polyps diagnosed on ultrasound abdomen was an accidental finding.

5. That the Gall Bladder Polyps do not cause Gastroenteritis, hence there polyps had no role in the cause and management of the patient.

6. That Gall Bladder Polyps as per the studies available in the medical books can be considered as per-cancerous but not cause for gastroenteritis.

7. That nowhere in the Indoor Case history the Gall Bladder polyps were mentioned as cause of the ailment.”

        In view of the categorical and specific deposition made by Dr. Rakesh Jaswal vide his affidavit Annexure R2/A, we find no merit and substance in the contention of the OP No.1 and thus hold that the repudiation by OP No.1 was incorrect, improper and not justifiable. Thus, we attribute lapse and deficiency on the part of the OP No.1 while declining the genuine claim of the complainant. The law laid down in the authority (supra) tendered by the OP No.1 is not disputed but the same is not applicable in the facts and circumstances of the present case.  We find no lapse and deficiency on the part of the OP No.2 and therefore, the complainant is dismissed qua OP No.2.     

11.    As a sequel to above discussion, we partly allow the complaint of the complainant by directing the Op No.1 to refund Rs.29,114/- to the complainant along with interest @ 9% per annum from the date of filing of complaint i.e. 22.12.2017 till realization. The Op No.1 is further directed to pay a lump sum compensation of Rs.15,000/- to the complainant on account of mental agony, harassment and cost of litigation charges.

12.    The OP No.1 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

31.01.2019         RUBY SHARMA      JAGMOHAN SINGH       SATPAL

                          MEMBER               MEMBER               PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                         SATPAL

                                         PRESIDENT