IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Tuesday the 14^th  day of December, 2021.

                                      Filed on 25-06-2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. C.K.Lekhamma, B.A.L,LLB (Member)

In

CC/No.140/2020

between

Complainants:-                                                           Opposite parties:-

1.  Sri.Ajith B S                                                   1.    The New India Assurance Co.Ltd.

Sathoshee Bhavan                                                 1^st floor, J&J Avenue, VCSB road,

M.O Ward                                                             Near YMCA Bridge,

Thiruvampady P.O.                                               Alappuzha-688011

Alappuzha-688002

                                                                       2.    MEDI ASSIST India TPA Pvt.Ltd.

2.  Smt.Asha Rajan                                                     4^th floor, Chicago Plaza

Thiruvilakkil House                                               Rajaji road, Ernakulam-682035

Kolencherry P.O.                                                   (Adv. Miji.S. Mony for Ops)

Ernakulam- 682311

(Adv. Babu Joseph for complainants)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.

1.      Material averments briefly stated are as follows:-

2^nd complainant is the wife of the 1^st complainant.  The 1^st complainant is a policy holder of mediclaim of the 1^st opposite party with customer ID PO45396121.  The policy assures cashless and reimbursement  of medical claim facility for medical treatments to all family members of the policy holder.  Initially policy was taken on 31-10-16 and it was renewed every year. 

2.      2^nd complainant due to enormous abdominal pain, had consulted Dr.Sherly Mathew of M/s Aster DM health care and referred for a whole abdomen ultra sound scan on 3.04.19.  The 2^nd complainant was admitted at Aster medicity hospital on 5-5-19 due to severe abdominal pain.    After a series of tests, an abnormal uterine bleeding with fibroid uterus has been diagonosed for the first time and no prior symptoms existed.  Thereafter, proper medication and treatment was given form the hospital and she was discharged on 10-5-19 after the treatment. 

3.      On the date of the admission the complainants had applied to avail cashless service from 1^st opposite party but it was rejected by the opposite parties without specifying any reason.  As result the final bill amount of Rs.1,53,286/- which would eligible for insurance coverage was paid directly by the 1^st complainant.  Later the complainants had submitted all documents including the discharge summary and final bills through the 2^nd opposite party for reimbursing the bill amount.  The claim was registered with claim number 98322272 which was subsequently rejected by the 1^st opposite party by mentioning the medical condition of the 2^nd complainant as ‘pre-existing disease’, hence declared not payable. 

4.      As per the final diagoniss the medical condition for which the treatment availed was for a leiomyoma of uterus.  It was firstly identified on 3-4-19 as per an ultra sound scan.  There were no signs of any ailment in connection with diagnosed medical condition prior to 2019. It was not a pre-existing disease.  The unfair rejection of claim by the 1^st opposite party caused financial loss and mental agony to the complainant.

5.      The documents required for verification were submitted on 16-5-19 and the verification process took unnecessary delay.  Inspite of repeated phone calls records were not returned even after the rejection of the claim.  Finally records were returned only on 6-8-19 ie, 3 months after the submission.  Due to this delay the 2^nd complainant found it impossible to register another claim under her employee insurance scheme.  Hence the complaint is filed for realizing an amount of Rs.1,53,286/- and Rs.3,00,000/- as compensation.

6.      1^st opposite party filed a version mainly contenting as follows:-

It is true that this opposite party had issued a mediclaim policy in the name of 1^st complainant during the period of 31-10-18 to 30-10-19.  The averment that 2^nd complainant was admitted in Aster DM health care due to enormous abdominal pain and there was no prior symptoms is incorrect.  The 2^nd complainant was suffering from menorrhagia and dysmenorrhoea disease for the last ten years.   2^nd complainant was treated for a period from 5-5-19 to 10-5-19  in Aster DM health care and was treated by Dr.Sherley Mathan.  From the discharge summary it is revealed that 2^nd complainant was suffering from the disease for the last ten years. 

7.      The allegation that claims of 2^nd complainant was rejected by 1^st opposite party without specifying any reason is not correct.  The denial of claim was duly intimated to the complainant.  The 2^nd opposite party received the reimbursement claim on 15-5-19 from the 2^nd complainant.  This opposite party denied the reimbursement claim  of the 2^nd complainant and intimated the same  to the complainants on 29.05.2019.   As per clause 4.1 of the policy, treatment of any pre-existing disease until 48 months continuous coverage of such insured person have elapsed from the date of inception of his/ her first policy as mentioned in the policy is not payable. 

8.      The averments that there were no signs of any ailment in connection with diagonised medical condition prior to 2019 is false.  The claim made by the complainants is for the pre-existing disease and thereby violated the terms and conditions of policy.  Policy was issued subject to the terms and conditions contained in the policy certificate.  Hence the policy holders are bound to comply the terms and conditions of policy. 

9.      There is no delay on the part of this opposite party in verifying the documents of the 2^nd complainant.  The reimbursement claim form was submitted on 15-5-19.  On verification it was found that the claim is made for a pre-existing disease and the claim was rejected and intimated to the 1^st complainant on 29-5-19 through registered post.  The allegation that even after the rejection of the claim this opposite party delayed in returning the documents is not correct. The 1^st complainant submitted a letter for return of the documents on 06.08.19 and on the very same day the documents were returned.  The allegation that complainant could not file claim under the employees insurance scheme due to delay on the part of opposite party in returning the documents is false.  As per the employees State Insurance Act the period of limitation for filing a claim is 90 days from the date of discharge.  The 2^nd complainant was discharged from hospital on 10-5-19 and this opposite party returned the documents to the complainant on 06-08-19.  Hence this opposite party is not liable to pay any amount on account of mediclaim or on account of compensation.  Hence the complaint may be dismissed.

10.   On the above pleadings following points were raised for consideration:-

1. Whether there was any deficiency of service on the part of opposite parties as alleged ?
2. Whether the complainants are entitled to realize an amount of Rs.1,53,286/- being the hospital expenses from the 1^st opposite party as prayed for?
3. Whether the complainants are entitled to realize an amount of Rs.3,00,000/- as compensation from the 1^st opposite party ?
4. Reliefs and cost?

11.    Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A6 from the side of the complainants and the oral evidence of RW1 & RW2 and Ext.B1 to B4 from the side of the opposite parties.

12.    Point Nos.1 to 3:-                                                                        

PW1 is the 1^st complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext.A1 to A6.

13.    RW1 is the divisional manger of 1^st opposite party.  He filed an affidavit in tune with the version and marked Ext.B1 to B4.

14.    RW2 is the administrative officer of the 1^st opposite party.  Ext.B3 document was signed by him, endorsement was made in the letter given by PW1.

15.    Complainants in this case who are spouses availed a mediclaim from the 1^st opposite party as per Ext.A1.  Initially the policy was taken on 31-10-16 and it was being renewed every year.  While so 2^nd complainant developed abdominal pain and consulted Dr.Sherly Mathew of M/s Aster DM health care and as per her advice an ultra sound scan was conducted on 03-4-19.  She was admitted at the hospital on 5-5-19 due to abdominal pain and was discharged on 10.05.19 after a surgery.  A bill for Rs.1,53,286/- was sent to the 1^st opposite party.  2^nd opposite party is a TPA of the 1^st opposite party.  As per Ext.B2 dtd.29-5-19 the claim was repudiated under clause 4.1 on a contention that there was a pre-existing disease and the coverage was available only after 48 months of continuous coverage. Aggrieved by the same the complaint is filed claiming an amount of Rs.1,53,286/- and Rs.3,00,000/- as compensation.  1^st opposite party filed a version admitting the mediclaim from 31-10-18 to 31-10-19. It was also admitted that the 2^nd complainant was treated as impatient for a period from 05-5-19 to 10-5-19 at Aster DM health care Pvt.Ltd.  There only contention is that since there was a pre-existing disease clause 4.1 of the conditions entitles them to repudiate the claim.  In such circumstances the claim was rejected. To substantiate their contention they relied upon Ext.A2 discharge summary in which the history is shown as complaint of menorrhagia and dysmenorrhoea since past 10 years.  There was a past history of bronchial asthma past 20 years.  1^st complainant got examined as PW1 and Ext.A1 to A6 were marked.  The divisional manager of the 1^st opposite party was examined as RW1 and Ext.B1 to B4 were marked and the administrative officer of the 1^st opposite party was examined as RW2. 

16.    The policy is admitted by the 1^st opposite party in the version filed by them.  Their only contention to repudiate the claim is under clause 4.1 of  Ext.B1 M/s New India Floater Mediclaim Policy.  For an easy reference clause 4.1 of the conditions is extracted here under ‘No claim will be payable under this policy for the following:-

17.    Treatment of any pre-existing condition/ disease until 48 months of continuous coverage of such insured person have elapsed.  From the date of inception of his/ her first policy as mentioned in the schedule’.  It is an admitted case that complainants took the mediclaim policy on 31-10-16 and they were renewing the same every year.  The hospitalization of 2^nd complainant in this case occurred on 5-5-19 and she was discharged on 10-5-19.  The case advanced by the PW1, the 1^st complainant is that 2^nd complainant developed enormous abdominal pain and when consulted Dr.Sherly Mathew of Aster DM health care Ltd. she advised for abdomen ultra sound scan on 03.04.19.  There after 2^nd complainant was admitted on 05.05.19 and conducted a surgery.  Ext.A2 is the discharge summary issued from Aster medicity which shows that the date of admission is on 05.05.19 and date of discharge is on 10.05.19. The diagnosis was abnormal uterine bleeding with fibroid uterus.  In the history it is stated that complaint of menorrhagia and dysmenorrhoea since past 10 years.  That is the reason according to opposite parties for repudiating the claim under clause 4.1 that there is a pre-existing disease.  As a matter of fact bleeding occurs in every woman after attaining puberty.  The number of days and the quantity of blood may vary from person to person and it cannot be considered as a pre-existing disease.  It is a natural phenomena of all normal ladies and according to us it cannot be considered as pre-existing disease as mentioned in clause 4.1 of the conditions attached to ext.B1 policy conditions.  Opposite parties have no case that prior to 3-4-19 2^nd complainant had undergone treatment anywhere else for the said disease.  It is to be remembered that complainants took the policy on 31-10-16 and they were renewing the policy every year.  Hospitalization  occurred only on 5-5-19 and 1^st opposite party has no case that prior to this complainant had claimed any amount as medi claim from them.  In such circumstances according to us the repudiation of the claim under the shelter of condition No.4.1 pre existing disease is not justifiable.  It was held by the

Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009 KHC 4898) – Assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge- obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known.  

 18.   The learned counsel appearing for the complainant relied upon a ruling of the

Hon’ble High Court of Punjab and Haryana in IFFCO tokio general insurance company Ltd. Vs, Permanent lok (ACJ 2013 0 1478) and pointed out that the rejection of claim was not proper. It was held having heard learned counsel for the petitioner appellant we are o f the considered view that no interference of this Court would be warranted in the view taken by the learned Single Judge as well as the Lok Adalat.  The law is well settled with regard to the exclusion clauses in standard forms of contracts.  When the bargaining powers of the parties is unequal and a consumer has no real freedom to contract then such a power may be considered unfair.  The principle deducible from various precedents is that the Courts would not enforce and when called upon to do so, strike down such an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power.  For instance, the above principle would apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties.  It would also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.  The types of contract to which the principle formulated above applies to terms which are so unfair and unreasonable that they shock the conscience of the Court.  They are opposed to public policy and require to be adjudged void.  In that regard we may place reliance on the judgment of Hon’bel supreme Court rendered in the case of central Inland Water Transport Corporation Ltd. V. Brojo Nath Ganguly (1986 AIR (SC) 1571).

        In the present case the exclusion clause No.1 would not apply to the consumer because premium for three years stand already paid and claim cannot be deemed to be made in respect of the period of three years.  Moreover, the precondition existed in the year 2002, which was five years prior to acquiring the insurance policy.  This result could be achieved if principle of interpretation known as ‘contra proferentem’ is applied.  The application of these techniques means that any ambiguity in a clause excluding liability should be construed against the preference and in favour of the party against whom the clause is pleaded.  Moreover, we find that the exclusion clause No.1 of the policy, as noticed in preceding para2, on the basis of which the claim of respondent No.2 was declined, is unfair and unreasonable clause, which cannot be acted upon by the insurance company.

19.    Complainants have got a further case that only Ext.A1 policy document was handed over to them and
Ext.B1 conditions of the policy was not given to them along with Ext.A1.  If that is so they are not liable to accept the conditions since it was not communicated to them.  It was held by the

Hon’ble Supreme Court in Modern Insulators Limited V. Oriental Insurance Company Limited (AIR (SC) 2000 0 1014) – We have been taken through the affidavits filed and we find in the affidavit of the appellant the letter received by the appellant from the Branch Manager of the respondent was referred to wherein it was confirmed that appellant was supplied only with a cover note and the schedule of the policy-.  As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause.

It was held by the Hon’ble Supreme Court in Indsil Hydro Power and Manganese Ltd. V. State of Kerala (2021 (5) KLT SN 47 (C.No.38) SC – In cases where a term of contract or agreement entered into between the parties is completely one sided, unfair and unreasonable, where the other party having less bargaining power had to accept such term by force of circumstances, the relief in terms of the decision of this Court in Central Inland Water Transport Corporation can be extended.

      It was held by the Honble National Consumer Disputes Redressal Commission in Bajaj Allianz general insurance Co. Ltd. Vs. Smt. Achala Rudraniwas Marde (1986- 2015 (I) Consumer 54 (NS)) health insurance cover- Evidence by complainant that the opposite party provided only 1 ½ page policy- clauses forms and conditions were not attached- held that non-disclosure of terms and conditions is violation of utmost good faith which is the base of insurance contract- repudiation of policy- unjust and arbitrary.

It was held by the Hon’ble Supreme Court in Om Prakash Vs. Reliance general insurance on 4-10-17 in civil appeal No.15611 of 2017- Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry.  It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers.  It is a beneficial legislation that deserves liberal construction.  This laudable object should not be forgotten while considering the claims made under the Act.

20.    In view of the judicial pronouncements discussed above we are of the considered opinion that 1^st opposite party had no authority to repudiate the claim under the shelter of clause 4.1 of the condition.  The total claim as per complaint is Rs.1,53,286/-.  However as per Ext.A4 series bills the total amount is only Rs.1,51,472/-. But it is noticed that bill No.3 for Rs.1309/- is with respect to Chappathi, Pineapple juice, Masaladosa etc. and so it is not allowable.  The 4^th bill is only for Rs.1,45,706/- and not Rs.1,45,783/- as claimed.  So the total amount will be Rs.1,50,086/- .

21.    Complainants are claiming an amount of Rs.3,00,000/- on account of compensation under the head of mental agony.  It is seen that though they have availed a mediclaim policy on 31-10-16 from the 1^st opposite party and they renewed the same every year their genuine claim was repudiated on a contention that there is a pre-existing disease.  Ext.A2 discharge summary shows that 2^nd complainant was discharged on 09-5-19 and still amount was not paid to them.  Complainants have got a further allegation that the repudiation was delayed and the documents were not returned to them by which they could not claim the amount by the another company.  Per contra opposite party examined RW2 and relied upon Ext.B3 document to show that on 06-08-19 all the original bills and investigation report was handed over to PW1 on the date of demand itself.  Since the genuine claim was repudiated naturally the complainants will sustain mental agony and so they are entitled for compensation and we are limiting the amount to Rs.50,000/-.  These points are found accordingly.

22.    Point No.4

          In the result complaint is allowed in part. 

1. Complainants are allowed to realise an amount of Rs.1,50,086/- (One lakhs fifty thousand and eighty-six only) along with interest @ 9% per annum from the date of repudiation 29.05.19 (Ext.B2) till realization from the 1^st opposite party.
2. Complainants are allowed to realise an amount of Rs.50,000/- (Fifty thousand) as compensation from the 1^st opposite party.
3. Complainants are allowed to realise an amount of Rs.3,000/- (Three thousand) as cost.

The order shall be complied within one month from the date of receipt of the copy of this order.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 14^th day of December, 2021.

Sd/-Sri.S.Santhosh Kumar (President)

Sd/-Smt. C.K Lekhamma (Member)

 Appendix:-Evidence of the complainant:-

PW1                    -        Ajith.B.S (Complainant)

Ext.A1                -        Copy of Insurance

Ext.A2                -        Discharge Summary

Ext.A3                -        Copy of Mail  (Sub to Obj)

Ext.A4                -        Medical Bills

Ext.A5                -         Copy of Mail

Ext.A6                -        Copy of Mail

Evidence of the opposite parties:-              

RW1                   -        Ranjith Kumar (Divisional Manager(1^st OP))

RW2                   -        Sreenivas Mallan(Administrative Officer (1^st OP))

Ext.B1                 -        New India Floater Mediclaim Policy

Ext.B2                 -        Registered letter dtd. 29/5/2019

Ext.B3                 -        Document

 Ext.B4                -        Proposal Form for New India Floater Mediclaim Policy

//True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                  Assistant Registrar

Typed by:- Sa/-

Compared by:-