Delhi

New Delhi

CC/5/2023

Menka - Complainant(s)

Versus

m/s. Bajaj Allianz General Insurance Company Ltd. - Opp.Party(s)

02 Jun 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-05/2023

IN THE MATTER OF:

Mrs. Menka

83, Hari Vihar, Kakrola,

New Delhi-110078                                                              ...Complainant

Versus

 

Bajaj Allianz General Insurance Company Ltd.,

12^th Floor, Dr. Gopal Dass Bhawan,

28, Barakhamba Road,

Connaught Place, New Delhi-110001.                                ...Opposite Party

 

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

                                                  Date of Institution:17.01.2023

                                  Date of Order              :02.06.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 35 read with 36 of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that the complainant had taken a on line health insurance policy bearing No. OG-23-1101-8441-00000078 on 20.04.2022 from opposite party. The said policy was valid from 20.04.2022 to 19.04.2023 for the sum insured of Rs.10,00,000/- (Rupees Ten Lakh).
3. The complainant got admitted in the ACE Hospital for her treatment on 10.11.2022 and remained hospitalized till 13.11.2022. The said hospital generated the final bills of Rs.47,623/- (Rupees Forty Seven Thousand Six Hundred Twenty Three) which was paid by complainant.
4. It is further alleged Complainant claimed the aforesaid bill amount from the opposite party, but Claim No. OC-23-1002-8441-00016589 of complainant was rejected by the opposite party vide letter dated 27.12.2022 for misrepresentation of facts and non-cooperation in terms of General Denial Clause 20 of the policy.  
5. It is further stated that complainant sent a letter by speed post with all required documents on 04.01.2023 to the OP/insurance company but no response was received.
6. The complainant thus having been left with no option other approached this Court, hence, this present complaint. It is also alleged that the present case is being filed within the period of limitation. The cause of action arose to file present case when the claim of the complainant rejected by opposite party vide letter dated 27.12.2022. That the residence of the complainant is situated at “New Delhi” New Delhi, hence, this Court has jurisdiction to entertain the present complaint.
7. It is prayed that OP be directed to pay a sum of Rs.47,623/- (Rupees Forty Seven Thousand Six Hundred Twenty Three) to complainant with pendentelite and future interest @ 18% p.a. from the date of repudiation of claim i.e. 27.12.2022 till realization. It is also prayed that OP be also directed to verify and produce the medical treatment record and bills of treatment of complainant from 10.11.2022 to 13.11.2022. Cost of litigation be also awarded.
8. Notice of the complaint was issued to OP, upon which OP entered appearance and filed written statement contesting the complaint on various grounds inter alia stating that complainant has not filed all the relevant records with the present complaint and in the absence of the same, it is very challenging for the OP to effectively address the issues raised by the complainant.
9. It was further alleged that complainant has wrongly alleged that there is “deficiency of service” on the part of the respondent, whereas in fact the complainant has not come to this Commission with clean hands and has concealed various material facts, It was also submitted that complainant had filed a claim on 26.11.2022 stating that she was admitted in Hospital from 10.11.2022 to 13.11.2022 for treatment of Enteric Fever with Moderate Dehydration. It was alleged that while claim of the complainant was being investigated, following discrepancies were discovered:

1. As per the Patient the Doctor visited twice a day. However, as per ICP the Doctor visited four times a day.
2. As per the patient the blood test was done once but as per the lab bill it was charged for multiple times.
3. Charges for RMO visit have been levied but as per the Patient only Dr. Sanja visited her.
4. There is no vital or drug chart for 13.1.2022.
5. ICP has apparently been written in a single stretch.
6. Three units of Injection PCM were administered but four units have been charged in the bill.
7. Hospital refused to provide Pathologist’s contact details or appointment.
8. Six units of Injection Piptaz were administered but nine units have been charged in the bill.
9. Two units of Injection Azee/Azimap were administered but five units have been charged in the bill.
10. Injection Albuzoy was not administered to the patient but has been charged for in the bill.

As such, the claim of the complainant was repudiated on 27.12.2022 for misrepresentation of facts and non-cooperation under General Denial Clause 20 of the terms and conditions of the policy.

10. It was also alleged that an insurance policy is a legal contract and its formation is subject to fulfillment of the requisites of a contract as defined under the Indian Contract Act, 1872. Thus, its performance is also directly proportional to the performance by both the parties, especially the Insured.
11. It was also submitted that the rights of the complainant/insured can trigger only if there is an adherence to the terms and conditions of the policy. If the complainant fails to discharge its party of the obligation, the respondent cannot be held responsible for performing its part. It was prayed that complaint be dismissed.
12. Complainant filed rejoinder reiterating therein the averments made in the complaint. Both parties filed their evidence by affidavit.
13. We have heard the AR of complainant and Ld. counsel for OP and perused the evidence and material on record as well as their written arguments.
14. We shall first decide the preliminary objections taken by OP. As regards the objection taken by OP that there were discrepancies in the claim filed by complainant, it is to be noted that complainant filed certificate of doctor dated 04.01.2023 stating that patient’s condition is very poor. Complainant has also filed the OPD slip advising admission. It is to be noted that complainant has also filed the treatment record, bills, laboratory reports, discharge summary issued by ACE Hospital. It is not the case of OP that the record of Hospital is forged or fabricated by complainant. Thus we do not find any merit in the said contention of OP that claim was rejected for misrepresentation of facts and non-cooperation.
15. It is pertinent to note that OP has not filed any document to show that the terms and conditions of the policy which included the exclusion clause were communicated or served on the insured/complainant. Moreover, OP had accepted the premium from complainant for the policy in question. Thus the OP could rely on the terms and conditions of the policy only if it supplied the copy thereof to insured, either at the time of inception of policy or thereafter. In the present case there is no evidence to show that the terms and conditions of the policy were furnished to the insured. Thus OP cannot take recourse to the terms and conditions of the policy.
16. As regard the liability of Insurance Company in case the terms and conditions of the policy which included the Exclusion clause were not communicated or served on the insured, it has been held by the Hon’ble Supreme Court in M/s Modern Insulators  Ltd. Vs. The Oriental Insurance Company 2000 (2) SCC 734 as under :

“It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose ill material facts in their knowledge since obligation of good faith applies to both equally.

In view of the settled position of law we are of the opinion that the view expressed by the National Commission is not correct. 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.Therefore, the finding of the National Commission is untenable in law.”

 

17. It is admitted case that complainant had obtained the policy in question from OP which was valid with effect from 10.11.2022 to 13.11.2022. and complainant was hospitalized during the tenure of coverage of the insurance policy. 
18. The repudiation letter dated 27.12.2022 states as under:

“The claim was repudiated on the ground of misrepresentation of facts with non-cooperation condition precedent condition means a policy terms or condition upon which insurers liability under the policy is conditional upon.

The relevant clause being General denial cause 20. The claim stands denied under the exclusion clause.”

 

19. It is to be noted there is no evidence on record to prove that the insured was suffering from any pre-existing disease at the time of purchasing the policy. The onus lay heavily on the OP to prove that the insured suppressed any material facts. Moreover the doctor has also not been examined. We note that the OP has not produced any credible documentary or other evidence in support of its case. For the foregoing reasons and particularly in the absence of any credible documentary or other evidence produced by the OP on whom was the onus to prove the reasons for repudiation, we are of the view that the repudiation of claim was illegal and arbitrary.

 

20. We accordingly hold that OP guilty of deficiency of services and direct OP i.e. Bajaj Allianz General Insurance Company Limited to pay Rs.47,623/- (Rupees Forty Seven Thousand Six Hundred Twenty Three) to the complainant with interest @ 9% per annum from date of filing of claim within four weeks of date of receipt of order, failing which OP will be liable to pay interest @ 12% per annum till realization. We also direct OP to pay compensation of Rs.50,000/- (Rupees Fifty Thousand only) for mental agony and Rs.10,000/- (Rupees Ten Thousand only) toward litigation expenses to the complainant.

A copy of order be sent/supplied to all the parties free of cost. The order be also uploaded on the website of the Commission (www.confonet.nic.in).

File be consigned to the record room along with a copy of the order.

 

Poonam Chaudhry

(President)

 

 

                                                      Bariq Ahmad

                                                              (Member)