Delhi

North

CC/187/2018

RAJESH SINGHAL - Complainant(s)

Versus

M/S. NATIONAL INSURANCE CO. LTD. & ANR. - Opp.Party(s)

RAHEJA ASSOCIATES

22 May 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.:187/2018

 

Sh. Rajesh Singhal,

S/o Lt. Sh. Moti Ram Singhal,

1/4925, Gali No.7,

Balbir Nagar Extn., Shahdara,

Delh-110032.                                                 …                          Complainant

 

                                                          Vs

 

M/s National Insurance Co. Ltd.

30-31A, Asaf Ali Road,

New Delh-110002,

 

Regd. Office at:

3, Middleton Street,

Prafulla Chandra Sen Sarabni,

Post Box No.9339,

Kolkata-700071.                                 …                               Opposite Party No.1

 

M/s Medicare TPA Services Pvt. Ltd.

13 J, 13^th Floor,

Gopal Towers, Rajendra Place,

New Delhi-110008.                                       …                     Opposite Party No.2

 

ORDER

22/05/2024

 

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 11 & 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

 

1. the Complainant had taken a Medi Claim Policy, policy bearing no. 350300501710002783 of sum assured of Rs.5,00,000/- (Rupees Five Lakh Only) from Opposite Party No.1 against a payment of premium of Rs.19,501/- (Rupees Nineteen Thousand Five Hundred One Only)  copies of the policy has been annexed with the complaint as Annexure-C.
2. the complainant & his family members were insured/covered by the above said policy by the OP no.1 during the period from 30.12.2017 till 29.12.2018 midnight as mentioned in the policy.
3. the complainant is holding the mediclaim policy since 2008 and has been paying timely premiums every year against the different policies. Copies of previous receipts & Insurance Policies are annexed with the complaint as Annexure-D(Colly).
4. Unfortunately, the complainant's wife namely Shaloo Singhal suffered from Uterine Fibroid (disease) and the complainant approached the OP-1 and also informed about his wife's illness. Accordingly, the OP-1 suggested the complainant to get his wife's treatment from any of the hospitals which are mentioned in the list of OP's assuring that the entire expenses incurred in the treatment of his wife will be reimbursed. Copy of list of Empanelled Hospital & Nursing Homes issued by OP's have been annexed with the complaint as Annexure-E.
5. Thereafter, the complainant got his wife admitted in Sir Ganga Ram Kolmet Hospital on 18.04.2018, where she was operated for Abdominal Hysterectomy with right Salpingectomy Uterine Fibroid (disease) and she was hospitalized from 18.04.2018 to 21.04.2018 (within the valid period of insurance policy) and an amount of Rs.2,14,160.00 (1,90,000+24,160 including medicines after discharge) was incurred in her treatment. Copies of bill and discharge summary have been annexed with the complaint as Annexure-F (Colly).
6. The Complainant submitted all relevant documents for reimbursement of medical bills with the agent of opposite party which was received by the office of Opposite Party No.1 on 03-05-2018. Thereafter, Complainant got a telephonic call on 27-06-2018 from the agent of Opposite Party who informed the complainant that only Rs.85,531-00 has been sanctioned & transferred to the account of complainant against his claim of Rs.2,14,160/. The Complainant reported the above matter to opposite party through their agent, several times through phone calls and personal visit to their office but the opposite party have not made any payment towards the claim.
7. Complainant issued a legal notice on 16-08-2018 to the opposite party for demanding his balance amount incurred on medical expenses of his wife which was duly received by OP's. Copy of notice along with postal receipts has been annexed with the complaint as Annexure-G (Colly). The opposite Party No.1 replied to legal notice on 30-08-2018 admitting the bill of Rs. 1,90,000/- but denied to make payment giving reference to some GIPSA capping which is illegal, arbitral and against the permission of law. Copy of reply to notice has been annexed with the complaint as Annexure-H.

 

(2)      It has further been alleged that Opposite Party No. 1 and 2 have failed to pay the balance amount of treatment bills in violation of guidelines of IRDA and Insurance Laws. It shows deficiency of services on the part of OP's towards the complainant. Not the least, the said acts have also resulted to the complainant and his family loss of mental peace, harassment, mental agony and depression.

(3)      The Complainant has also stated that the objective of Insurance Policy is to cater to Medical expenses incurred by the insured. In the present matter sum assured was Rs.5,00,000/-(Rupees Five Lakh Only) & the OP failed to pay the amount. The Opposite party was duly informed (through the opposite party agent) before taking the treatment of the above said disease and was reassured about the reimbursement of the same but they arbitrary reduced the amount. No list of applicable charges/ approved Panel Rates was provided to the Complainant. The Complainant is entitled to get a balance amount of Rs.1,28,629/- (Rupees One Lakh Twenty Eight Thousand Six Hundred Twenty Nine only) which has caused severe mental pain and agony to the complainant. The complainant is also entitled to recover interest on the amount paid till date@ 12% p.a. and Rs. 50,000/- towards mental agony, harassment which has been suffered by the complainant. The complainant is also claiming that Cost of the Litigation may also be awarded to the complainant(s).

 (4)     The Complainant has also filed copies of identity card, tax invoice, copy of policies and premium receipt from year 2012-13, list of empanelled hospital & Nursing Homes issued by OP, bill and discharge summary of the Complainant’s with alongwith health card, legal notice issued to OP alongwith postal receipts and reply of OP to legal notice alongwith the complaint to substantiate the allegation levelled in the complaint praying for order to:-

1. Direct the opposite parties to pay Rs.1,28,629/- [One Lakh Twenty Eight Thousand Six Hundred Twenty Nine Only] being balance amount against the bill amounting Rs.2,14,160/- (including medicines after discharge) incurred in the treatment of the complainant's wife with interest @ 12% per annum.
2. Direct the opposite Party to pay a sum of Rs.50,000/- (Fifty thousand) to the complainant towards the loss of mental peace, harassment, mental agony and depression suffered by the complainant;
3. Cost of the Litigation of Rs. 25,000/- (twenty five thousand) to the complainant(s); and
4. pass such other order/s which this Commission may deem fit and proper in favour of the complainant(s) and against the opposite party, under the facts and circumstances of the case.

(5)      Accordingly, notices were issued to the OPs and in response, the OP-1 has filed its reply with preliminary objection as under:-

1. there is neither any deficiency in service nor any unfair trade practice committed by the answering OP-1. Therefore, no claim under the Consumer Protection Act can be made out against the OP-1 and the present complaint is liable to dismissed against the OP-1.
2. the complainant has failed to appreciate that the Insurance Policies are governed by the law of contract. Hence, insurer as well as insured, both the parties are bound with all the clauses/terms & conditions of the policy.
3. the claim of the complainant was rightly approved (for a sum of Rs. 85,531/- in total) after applying the Reasonable and Customary Clause no.3.31 of the Policy which reads as under:-

"Charges for services or supplies, which are the standard charges for specific provider and consistent with the prevailing charges in the geographical area for identical or similar services, taking into account the nature of the illness/injury involved".

 

4. The Complainant is bound by the terms of the policy under which his claim has been approved. Therefore, no claim under the Consumer Protection Act can be made out against the OP-1. The complainant has no locus-standi to file the present complaint as the claim of the complainant has already been approved according to terms and conditions of the policy.
5. the present complaint is not maintainable against the Opposite Party No.1 as the same lacks cause of action against the OP-1. Hence, the claim filed by the complainant is not maintainable and deserve dismissal out rightly. The suit filed by the complainant is not maintainable against the opposite party in the eye of the law and it is only an abuse process of law is liable to be dismissed outrightly.

(6)      The OP-1 has also filed parawise reply to the complaint as under:-

1. the contents of Para Nos. 1-2 of the complaint are matter of record. Hence, need not to answer.
2. the contents of Para Nos. 3-7 of the complaint are matter of record. However, it is specifically denied that any kind of allurements/representations and assurances were given by the OP-1 other than the terms and conditions of the Policy. The complainant is put to stricter proofs of his averments made under these paras and contents of preliminary objections are also reiterated.
3. the contents of para no.8 of the complaint are admitted. It is submitted that the sanctioned amount was paid as full and final settlement. Hence, no claim is matter of record.
4. the contents of para no. 9 of the complaint are denied in toto and Complainant is required to put stricter proofs of his averments under this para.
5. the contents of para nos. 10-11 of the complaint are matter of record.
6. the contents of para no. 12-14 of the complaint are wrong, false and vehemently denied. After transferring the settled amount to the complainant on applying the Reasonable and Customary Clause no.3.24 of the Policy, the OP-1 has left with no liability towards the complainant.
7. the contents of para no.15 of the complaint need no reply.
8. the contents of para numbers 16-18 of the complaint are wrong, false and vehemently denied. The complainant has failed to understand that policy holder/insured is entitled to claim amount subject to terms and conditions of the policy. In the present case also complainant has received the claim amount accordingly. Hence, there is no due payment left towards the OP-1. Complainant has nowhere mentioned any single date on which he has approached/informed the OP-1. Reason is crystal clear in itself that the complainant has never approached/informed the OP-1. The Complainant himself claiming that he is holding the Mediclaim policy since year 2008. Being an old policy holder the complainant must have full knowledge that terms and conditions are always provided with the Policy. However, the foregoing paras and preliminary objections may be read as reply to this para also.
9. the contents of Para No.19 of the complaint need no reply.
10. the contents of Para. Nos. 20-22 of the complaint are wrong, false and vehemently denied that the OP-1 has given any misleading/ false offers/ deficient services to the complainant and followed any kind of unfair trade practice. Hence, complainant is not entitled to any relief under these para. The complainant is put to stricter proofs of his averments made under these paras.
11. the contents of para no. 23 are wrong, false and hence vehemently denied that any cause of action ever arose against the answering OP-1.

(7)      However, the OP-2 neither appeared nor did send any communication despite service of the notice. Since the OP-2 has chosen not to contest the allegations levelled in the complaint despite service and has been proceeded Ex-parte, the allegations made by the Complainant has remained un-rebutted.

(8)      Thereafter, Complainant has filed rejoinder, evidence by way of Affidavit and written arguments. OP-1 has also filed evidence by way of Affidavit but OP-1 has not filed its written arguments. Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

1. The OP has contended that the claim of the complainant was rightly approved for a sum of Rs. 85,531/- in total, after applying the Reasonable and Customary Clause no.3.31 of the Policy which reads as under:-

"Charges for services or supplies, which are the standard charges for specific provider and consistent with the prevailing charges in the geographical area for identical or similar services, taking into account the nature of the illness/injury involved".

 

2. The Complainant has alleged in para 18 of the complaint that “No list of applicable charges approved by Panel Rates was provided” and in reply to this allegation, the OP-1 has stated that the Complainant is holding the Mediclaim policy since year 2008 and being an old policy holder the complainant must have full knowledge that terms and conditions are always provided with the Policy. The reply of the OP-1 appears vague as the OP-1 has not filed any proof/evidence to prove that the terms and conditions and treatment wise approved panel rates/GIPSA rates were ever supplied to the complainant.
3. OP-I in reply dated 30-08-2018 sent to complainant in response to his legal notice, the OP-1 has relied upon the rates of Max Hospital, Saket for the same treatment to justify the deductions of treatment expenses under its Customary Clause no.3.31. It has been found that as per google map, the distance between these two hospital is  around 19.3km and the OP-1 has also failed to justify its logic for comparison of standard charges/prevailing charges in the geographical area for identical or similar services between these two hospitals.
4. Further, as per google map, the distance of Sir Ganga Ram Hospital and Max Hospital, Saket from the residence of the complainant is 14.3km and 28.5km respectively and justification of relying upon the rates of Max Hospital, Saket for deduction of treatment expenses under its Customary Clause no.3.31 also does not sound convincing. The OP-1 has completely failed to explain the concept of deciding the “Geographical Area” for settling the claims. Copies of prints of google distance sheets are placed on records.
5. The complainant has also filed copies of the previous insurance policies which also corroborates that the terms and conditions have not been enclosed with the policies.
6. The OP-1 has also failed to bring on record any evidence to prove that either terms and conditions or GIPSA rates were delivered to complainant.

(9).    In this regard, the following observations of the Hon’ble NCDRC in the matter of M/S. Anjaneya Jewellery vs New India Assurance Co. Ltd. & 2 Ors. passed on 14 February, 2023 in CC/1094/2018 are also relevant:-        

“Applying the Principles laid down by the Hon’ble Supreme Court referred to above, to the facts of the present case, we find that there is no material on Record to establish that the Opposite Party Insurance Company had given the Terms and Conditions of the Special Package Insurance Policy or at any point of time or ever informed the Complainant about the same. Thus, the Exclusion Clause on the basis of which the Opposite Party Insurance Company had repudiated the Insurance Claim of the Complainant, cannot be sustained as the Opposite Party Insurance Company could not rely upon the same. The Repudiation letter is, therefore, set aside. There had been Deficient in Service by the Opposite Party Insurance Company in repudiating the genuine claim of the Complainant.”

(10)    The judgement of Hon'ble Supreme Court in Modern Insulators Ltd. versus Oriental Insurance Company Limited [(2000) 2 SCC 734] is also relevant in the matter wherein it has been held that if the exclusion clause has not been communicated to the insured, then insurer cannot claim benefit of that clause.

(11)  The judgment of the Hon’ble supreme court of India delivered in the CA No. 1496 of 2023 in the matter of United India Insurance Co. Ltd. Versus M/s Hyundai Engineering & Construction Co. Ltd. & Ors. 2024 INSC 431 is also relevant in the matter wherein it has been held that :-

 

“16.     Analysis: Insurance is a contract of indemnification,

being a  contract for a specific purpose, which is to   cover defined losses. The courts have to read the insurance contract strictly. Essentially, the insurer cannot be asked to cover a loss that is not mentioned. Exclusion clauses in insurance contracts are interpreted strictly and against the insurer as they have the effect of completely exempting the insurer of its liabilities.

17.    In Texco Marketing P. Ltd. v. TATA AIG General   Insurance Company Ltd., while dealing with an exclusion clause, this Court  has held that the burden of proving the applicability of an exclusionary clause lies on the insurer. At the same time, it was stated that such a clause cannot be interpreted so that it conflicts with the main intention of the insurance. It is, therefore, the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause.”

 

(12)    In view of the above observations, we are of the considered view that the OP has made deductions of treatment expenses from the disputed claim under the garb of  “Reasonable and Customary Clause no.3.31” in unjustified and illegal way and the complainant has suffered directly due to deficient service of the OP-1 (M/s National Insurance Co. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OP to pay the complainant:-

 

1.  Rs.1,28,629/- [One Lakh Twenty Eight Thousand Six Hundred Twenty Nine Only] as balance amount of claim filed by the complainant for hospitalization and medical expenses, within thirty (30) days from the date of receipt of this order, with interest at the rate of 9% p.a. from 03-06-2018 (date of expiry of 30 days period from filing of claim by the complainant with OP) till the date of the payment;
2. Rs.50,000/- (Rs. Fifty thousand only) as compensation for mental agony and harassment caused to the complainant;
3. Rs.10,000/-(Rs. Ten thousand only)  as litigation expenses.

 

(13)    It is clarified that if the amount ordered in para 12 (i) to (iii) shall be paid by the OP to the Complainant within the 30 days as directed above, failing which the OP shall be liable to pay interest @12% per annum on awarded amount from the date of expiry of 30 days period. The OP-1 is at liberty to recover the awarded amount from OP-2 on pro-rata basis.

(14)    Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

                     ASHWANI KUMAR MEHTA                                                HARPREET KAUR CHARYA          

                                 Member                                                                                         Member      

                        DCDRC-1 (North)                                                                         DCDRC-1 (North)      

                                                           

DIVYA JYOTI JAIPURIAR

                                        President

                                            DCDRC-1 (North)