Delhi

New Delhi

CC/170/2021

Mahendra - Complainant(s)

Versus

M/S. ICICI Lombard Insurance Co.Ltd. - Opp.Party(s)

04 Jul 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-170/2021

 

IN THE MATTER OF

 

Mr. Mahendra

A-481.J.J. Colony Sec-15 Bharat Vihar,

Kakrola ,New delhi-110078.                                                  ...Complainant

Versus

 

M/s ICICI Lombard General Insurance Co.Ltd.

Fourth Parsavnath Capital Tower

Bhari Veer Singh Marg, New Delhi-11001

 

At Also

ICICI Lombard GIC,

ICICI Lombard Health care,

ICICI Bank Tower,

Plot No.12 Financial Disteict, Nanakram Guda.

Gachobowli, Hyderabad-500032

 

Parth Hospital

House No.25, Vikas Nagar, Ranholla Road

Near MLA Office, Uttam Nagar,

New Delhi-110059.…Opposite Party

 

Quorum:

 

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

 

Date of Institution:06.09.2021

                                                                    Date of Order      : 04.07.2023

 

ORDER

 

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complaint has been filed under Section 12 of the Consumer Protection Act (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 on line health insurance policy bearing no.4128i/iH/161091659/00/000 on 13/12/2018 from the opposite party. The said policy was from 13/12/2018 to 12/12/2019 for the sum insured of Rs.5,00,000/-(Five Lacs only).
3. That the complainant got admitted in the Parth hospital, New Delhi for treatment on 19/08/2019 at 9.00 AM and remained hospitalized till 23/08/2019. The said hospital generated final bill of Rs.39,073/- (Rupees Thirty Nine Thousand Seventy Three) which was paid by the complainant the Path Hospital.
4. Complainant claimed the aforesaid bill amount from the opposite party, but the same was rejected by the opposite party vide letter dated 24/10/2019 with the reason that as per part III, clause 12of policy T&C., fraudulent Claims; No benefit shall be payable in the event of misrepresentation, or in fraudulent claims, or if any false statement, or declaration is made or used   support thereof, or if any fraudulent means or devices are used to obtain any benefit this policy claim. Hence claim was rejected.
5. It is alleged that a legal notice dated 01/04/2021 was sent to the OP but no response was received. The complainant having been left with no option approached this Court. Hence the present complaint.  It is also alleged that the present case has been filled within the period of limitation. The cause of action arose to file present i.e. when the claim of the complainant was rejected by opposite party on.24/10/2019. The residence of the complainant is situated at “Kakrola” New Delhi. Hence, this Court has jurisdiction to entertain the present complaint.
6. It is prayed that OP be directed to pay a sum of Rs.39,073/- (Rupees Thirty Nine Thousand Seventy Three)  to the complainant with pendentelite and future interest @ 18 p.a. from the date of repudiation of claim till its realization. It is also prayed that opposite party be directed to verify and produce the medical treatment record and bills of complainant from 19/08/2019 AT 09.00AM to 23/08/2019. Cost of litigation be also awarded.
7. Notice of the complaint was issued to OP-1 and 2, upon which OP-1 entered appearance and filed written statement contesting the case on various grounds inter alia that OP No.1 issued a health policy bearing No.4128i/iH/161091659/00/00 in the name of the complainant for the period commencing from 13/12/2018 to 12/12/2019 subject to terms and condition of policy. It was further alleged the complaint is misconceived, false and frivolous, as the complainant has not come to this Forum with clean hands and has suppressed material facts. That the complainant is not a consumer under the provision of consumer protection Act,1986.
8. It was alleged that the complainant made a misrepresentation to the answering Opposite Party and that was the reason his claim was rightly rejected vide communication date 24/10/2019 wherein it was clearly mentioned that in terms of Part III of  clause 12 of the policy that no benefit will be given to fraudulent Claims.

“ÄS per part III, clause12 of Policy T& C. Fraudulent Claims: No benefitshall be payable in the event of untrue or incorrect statements, misrepresentation, ifany Claim is in any respect fraudulent, or if any false statement, or declaration is made or used in support thereof, or if any fraudulent means or devices are used by you or anyone acting on your behalf to obtain any benefit under this Policy.”

9. It was also alleged complainant had concealed the material information prior to taking the aforesaid Insurance Policy from the Opposite Party, he did not disclose the fact that Smt. Rani Nath had major right leg operation prior to taking the aforesaid policy in the year 2017. The aforesaid fact came only into the knowledge of the Opposite Party when the aforesaid Smt. Rani Nath was admitted in the hospital for her treatment wherein they disclosed that in the year 2017 she had right leg operation. The concealment on the part of the complainant prior to taking the aforesaid insurance policy clearly shows that the complainant had given false information and obtained the consent of OP by furnishing false information despite the fact that he is aware that the Contract of Insurance is Contract of utmost good faith.
10. It was also alleged that the complaint is liable to be rejected as the complaint has not filed the complete medical treatment papers as well as the complete medical bills to show that what amount actually he has incurred on the treatment.
11.  It was denied that the complainant got admitted in the Parth Hospital, New Delhi for his treatment on dated 19.08.2019 and remained hospitalized till 23.08.2019 for his treatment and in lieu of complainants treatment and said hospital generated the final bill amounting to Rs.39,073/- (Rupees Thirty Nine Thousand Seventy Three) and the same was paid by the complainant the Parth Hospital. It was prayed that complaint be dismissed.
12. As none appeared for OP despite service, OP-2 was proceeded exparte vide order dated 19.10.2022.
13. Complainant thereafter filed rejoinder reiterating therein the averments made in the complaint.
14. We have heard the AR of complainant and counsel for OP and perused the record.
15. It is the case of complainant that he was hospitalized for treatment in Parth Hospital and he has filed his treatment record, bills issued by Parth hospital. The contention of OP that complainant concealed information of surgery of Rani Nath is without merits as it is not the case of complainant that Rani Nath was hospitalized and the bills are for reimbursement of her treatment.
16. It is to be noted that OP has not filed any documents to show that  terms and conditions of the policy were served or communicated on the complainant. 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.”

 

17.  Thus 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.
18. 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 No.1 that complainant was not hospitalized in the Parth Hospital, and the said hospital issued a letter dated 16.10.2019 in this regard, it is to be noted that OP did not examine the concerned doctor or official of hospital to prove the same.  
19. It is to be noted, the onus lay heavily on the OP to prove that the insured suppressed any material facts or information or the claim was fraudulent. Moreover the concerned doctor has 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. Thus we are of the view that the repudiation of claim was arbitrary and illegal. The contention of OP that there was any misrepresentation of fact by complainant is in our view without merits.
20. For the foregoing reasons, we accordingly hold that OP guilty of deficiency of services and direct OP-1/ICICI Lombard General Insurance Company Limited  to pay Rs.39,073/- (Rupees Thirty Nine Thousand Seventy 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.25,000/- (Rupees  Twenty Five 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                                                                                                                 Shekhar Chandra

    (Member)                                                                                                                         (Member)