Delhi

New Delhi

CC/249/2022

Shakuntala - 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-249/2022

IN THE MATTER OF:

Mrs. Shakuntala

H.No. 285, Kakrola Village,

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:06.10.2022

                                  Date of Order              :02.06.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 12 and 35 of the Consumer Protection Act, 1986 (in short CP Act) against Opposite Party (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that the complainant had taken a online health insurance policy bearing no. OG-22-1101-8441-00001156 on 01.10.2021 from opposite party. The said policy was valid from 01.10.2021 to 30.09.2022 for the sum insured of Rs.5,00,000/- (Rupees Five Lakh). Complainant got admitted in the Anand Hospital for his treatment on 29.04.2022 and remained hospitalized till 03.05.2022. The said hospital generated the final bill of Rs.35,387/- (Rupees Thirty Five Thousand Three Hundred Eighty Seven) which was paid by complainant.
3. Complainant claimed the aforesaid bill amount from the opposite party, the Claim of complainant No. OC-23-1002-8441-00003433 was rejected by the opposite party vide letter dated 19.08.2022.
4. It is also alleged that the complainant sent a letter dated 30.09.2022 to OP but no response was received. Thus complainant having been left with no option approached this Court, hence the present complaint. It is stated the present case is being filed within the period of limitation. The cause of action arose when the claim of the complainant rejected by opposite party on 19.08.2022. The residence of the complainant situated at “Kakrola” New Delhi as such this Court has jurisdiction to entertain the present complaint.
5. It is prayed that OP be directed to pay a sum of Rs.35,387/- (Rupees Thirty Five Thousand Three Hundred Eighty Seven) to the complainant with pendentelite and future interest @ 18% from the date of repudiation of claim till its realization. OP be also directed to verify and produce the medical treatment record and bills of treatment of complainant from 29.04.2022 to 03.05.2022. Cost of litigation be also awarded.
6. Notice of the complaint was issued to OP, upon which OP entered appearance and filed written statement contesting the case on various grounds inter alia that the complainant has not filed all the relevant records along with her complaint and in the absence of the same, it is very challenging for the answering respondent to effectively address the issues raised by the complainant, as such the present complaint deserves to be dismissed.
7. It was also alleged that there is no deficiency of service on the part of the respondent and it is the complainant who has not come to this Commission with clean hands and has concealed various material facts. It was alleged that the following discrepancies were noted while the claim of complainant was being processed:

1. Patient was allegedly presented with complaints of complicated enteric fever with acute gastroenteritis and severe dehydration and got admitted to the Hospital. However, first consultation details are not available. Also, no any post discharge follow-up treatment was taken by the Patient/complainant.
2. Patient/complainant was allegedly suffering from fever and admitted for 4(four) days. However, the patient was not evaluated for notifiable disease as per government notified standard protocols.
3. All indoor case papers are written in the single handwriting.
4. No change in line of treatment even when the fever didn’t subside for more than 3 (Three) days.
5. Higher antibiotics used without any prior OPD treatment.
6. Patient/complainant failed to share the medicine purchase invoices, medicines bills duplicate and pathologist contact details.
7. Medical condition and treatment do not follow standard protocols for patient care.
8. Hospital registration expired on 31.03.2018. The renewal is still pending.
9. Hospital authorities denied to verify the hospital bills, hospitalization details, pathology reports and other records.

8. It was alleged that the claim of the complainant was repudiated on 19.08.2022 due to misrepresentation of facts and non-cooperation, under Section E, Condition 2 which provides as under:

“ The Terms and conditions of the policy must be fulfilled by the Insured Person for the Company to make any payment for claim(s) arising under the policy.”

9. It was also alleged 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 his party of the obligation, the respondent cannot be held to responsible for performing its part. Especially, since the obligation of the respondent will only emanate once the complainant has performed his part of the obligation. It was alleged the claim of the complainant was repudiated on 19.08.2022 due to misrepresentation of facts and non-cooperation. It was prayed  that the complaint be dismissed.
10. Complainant filed rejoinder reiterating therein the averments made in the complaint, she stated that she had filed the first consultation OPD  record. In the rejoinder complainant stated as regard the objection of OP that there was no change in the line of treatment even when fever did not subside, this was the decision of the treating doctor/hospital and not complainant. As regards the objection of OP that higher antibiotics were given without prior OPD treatment it was stated that it was the decision of treating doctor/hospital. It was stated the complainant has filed the Pathology contact details. It was also stated that complainant was hospitalized in emergency and the registration of the hospital was under process. Complainant filed a letter dated 09.08.2022 which shows that the registration of the Hospital was under process. As regards the contention of OP that all indoor case paper were in the same handwriting, it was stated that OP ought to filed the report of forensic expert.
11. We have heard the Ld. counsel for parties and perused the record.
12. It is to be noted that OP has not filed any terms and conditions of the policy which were served or communicated on the complainant. It is to be noted that as regards the liability of Insurance Company in case the terms and conditions of the policy 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.”

 

13. It is further to be noted that it is not the case of OP that complainant/insured had concealed any material fact regarding any pre-existing decease. We are of the view 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.
14. Thus we are of the view that repudiation of claim by insurer/OP was totally unwarranted and amounted deficiency of service. We do not find that there was any violation of the terms and conditions of the policy by the complainant. As regard the contention of OP that registration of Anand Hospital had expired on 31.03.2018, complainant has placed on record copy of the documents of Anand Hospital dated 09.08.2022 which show that process of registration is in progress and the Hospital is in the list of registered  hospitals.
15. It is to be noted the complainant has filed the medical treatment records, bills, discharge summary issued by the Anand Hospital. It is to be noted that there is no evidence on record to show 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 or information. Moreover the concerned doctor has also not been examined by OP. We note that the respondent 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 of OP on whom was the onus to prove the reasons for repudiation. We are of the view that the repudiation of claim was arbitrary and illegal.Thus the contention of OP that there was any misrepresentation of fact by complainant or non-cooperation is in our view are without merits.
16. For the foregoing reasons, we accordingly hold that OP guilty of deficiency of services and direct OP i.e. Bajaj Allianz General Insurance Company Limited

 to pay Rs.35,387/- (Rupees Thirty Five Thousand Three Hundred Eighty Seven) 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)