Delhi

New Delhi

CC/537/2011

Mohinder Pal Singh - Complainant(s)

Versus

M/S. United India Insurance Company Ltd. - Opp.Party(s)

30 May 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

Case No.C.C./537/2011                                 Dated:

In the matter of:

SHRI MOHINDER PAL SINGH,

C-2/57, Ashok Vihar, Phase-II,

Delhi-110052

 

        ……..COMPLAINANT

VERSUS

 

THE MANAGER,

UNITED INDIA INSURANCE CO. LTD.

DO-24, Kailash Building, 26 K.G. Marg,

New Delhi-110001.

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

ORDER

 

The repudiation of the insurance claim of the complainant against Cashless Medical Health Policy by the OP has led the complainant file the present complaint under section 12 of The Consumer Protection Act, 1986 (in short Act) alleging, in brief, that the complainant obtained Cashless Medical Health Policy for the sum insured of Rs. 6,00,000/- and paid an amount of Rs. 16,976/- as premium to the OP and the OP issued a policy cover bearing number 042400/48/08/06/00000786 for insurance period 13/7/2008 to 12/7/2009. The complainant, his wife Mrs. Manjinder Kaur and daughter Ms. Guneet Kaur were covered under the policy. After a few days complainant also received identity cards from the OP. In the month of March 2009, the wife of complainant Mrs Manjinder Kaur was not well and approached the hospital for a checkup, but was refused cashless facility at the hospital. Despite the fact that the complainant had been informed at the time of taking policy that it was a cashless policy, the complainant had to bear surgery expenses in the sum of Rs. 2,86,126/- with Max Super Specialty Hospital while on account of Cashless Medical Health Insurance Policy in question the expenses should have been borne by the OP. The complaint has prayed for direction to the OP to pay the amount of the expenses incurred in surgery in the sum of Rs. 2,86,126/- and Rs. 15,000/- for post-operative treatment, making the total amount in the sum of Rs. 3,01,126/- besides Rs. 1,00,000/- towards mental harassment, pain, agony suffered by complainant despite having cashless policy from the OP. The complainant has also requested for any other or further order which this District Forum may deem fit and proper.

 

The notice of the complaint was issued to the OP who contested the complaint and filed reply admitting that Family Medicare Policy, No. 042400/48/08/06/00000786 was issued to the complainant. It was a fresh policy and complainant, his wife and daughter were covered for insurance period 13/7/2008 to12/7/2009. The complainant's wife Mrs. Manjinder Kaur had been admitted to the hospital but mediclaim in question was not payable during the first two years of the operation of the policy as per Clause 4.3 of the terms and conditions of the said policy taken by the complainant. The complainant's cashless request was thereby rejected by M/S Vipul MedCorp, the Third-Party Administrator (TPA) of the OP. According to OP, the complainant's wife has undergone a procedure of Ortho Unilateral Total Knee Replacement at the hospital and was claiming cashless treatment for the same. OP also submitted that the complainant has been informed by the letter by M/S Vipul MedCorp, the Third-Party Administrator (TPA) of the OP that is cashless treatment demand was being rejected in view of the above stated reasons.. However, he can submit his claim for reimbursement of the treatment expenses along with all the relevant original documents and the same should be processed by the TPA as per terms and conditions of the policy. OP has denied other facts stated in the complaint and has prayed for dismissal of the same with costs.

In support of his case, the complainant has filed his affidavit in evidence. On behalf of the OP, the affidavit in evidence of Shri Manu Dev Rajput Kachchwaha, Assistant Manager of United India Insurance Co. Ltd, with its Divisional Office No. 24, is filed. The complainant has also filed written arguments.

We have heard the complainant and have gone through the written arguments filed on behalf of the complainant, record of the case and relevant provisions of law. None appeared on behalf of the OP for addressing oral arguments nor any written arguments are filed on behalf of the OP. No authority is produced from either side.

The basic facts of this case are not in dispute. Undisputedly, the complainant obtained Cashless Medical Health Policy for the sum insured in the sum of Rs. 600,000/- and paid an amount of Rs. 16,976/- as premium to the OP and the OP issued a policy cover bearing No. 042400/48/08/06/00000786 for insurance period 13/7/2008 to12/7/2009. It is not disputed that the wife of the complainant was covered under the said insurance policy and was admitted in Max Super Speciality Hospital and has undergone a procedure of Ortho Unilateral Total Knee Replacement at the hospital and was claiming cashless treatment for the same. The cashless request was turned down by M/S Vipul Medcorp, the Third-Party Administrator (TPA) of the OP. The expenses incurred in the surgery in the sum of Rs.286,126/- and Rs. 15,000/- for post-operative treatment, making the total amount in the sum of Rs. 301,126/ are also not disputed.

In the backdrop of the above admitted position the plea of the OP about repudiation of the cashless claim of the complainant on the ground that the same was not permissible for the first two years of the policy as per Clause 4.3 of the terms and condition of the said policy is to be examined.

In M/s. Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., (SC) :  2000 AIR (SC) 1014 :  2000(2) SCC 734 : 2000(2) Scale 25 : 2000(2) JT 289 : 2000(1) SCR 1076 , relied on behalf of the complainant following observations were made:

"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-disclsoure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally."

In Modern Insulators Ltd.'s case (supra) as the 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 insured it was held that the insurance company cannot claim the benefit of the said exclusion clause.

In joint decision of honourable National Commission in Revision Petition. No. 186/2007 titled National Insurance Co. Ltd versus DP Jain and Revision Petition 187 of 2007 titled National Insurance Co. Ltd Versus Manjit Kumar decided on 15/5/2007 also relied upon by learned counsel for the complainant the above observations of honourable Apex Court in Modern Insulators Ltd’s case (supra) were quoted and followed. It was also indicated therein that Regulation 3 of Insurance Regulatory and Development Authority (IRDA) (Protection of Policy Holders Interest), 2002 requires to be followed by the insurance company so that the terms of the insurance policy, do not operate harshly against the insured, and in  favour of insurer. It was also observed that from the Regulations, as well as the law laid down by the Apex Court, it is clear that if Exclusion Clauses are not explained, they are not binding on the insured. These exclusion clauses are required to be ignored while considering the claim of the insured.

Coming to the facts of the present complaint the only document given to the complainant for the insurance cover. An insurance policy in question is proved by complainant as Exhibits CW 1/A and the three identity cards, copies of which are Exhibit CW 1/B (Colly). Although the terms and conditions and the Family Medicare Policy are filed by OP insurance company as Annexure OP/1 with the reply to the complainant and proved by the Assistant Manager of the Divisional Office-24 of the OP insurance company Sh. Manu Dev Rajput by his affidavit in evidence as Exhibit OP 1 is placed and clause 4.3 of the terms and condition of the policy for repudiation of the cashless claim of the complainant, but in the light of above observations of honourable Supreme Court in Modern Insulators Ltd's case (supra) and of honourable National  Commission in DP Jain 's case (supra) to have effective reliance on clause 4.3 of term conditions of the insurance policy for repudiation of the claim of the complainant the OP insurance company ought to have intimated the said term and condition to the complainant. There is no material on record to suggest that OP insurance company has acquainted the complainant of the said terms and conditions applicable to the insurance policy in question. The argument on behalf of  complainant is that neither these terms and conditions were supplied by OP to complainant nor policy containing the same was issued and only two page policy document Exhibit CW 1/A was issued. Therefore, in view of Modern Insulators Ltd.'s case (supra) and DP Jain 's case (supra) we hold that repudiation of the cashless claim of the complainant by the OP insurance company through its TPA, amounts to deficiency in service on the part of OP insurance company, the complaint deserves to be allowed.

In view of the above discussion, we allow the complaint and direct the OP insurance company to make the payment in the sum of Rs. 301,126/– for expenses of knee replacement surgery and post-operative treatment along with simple interest at the rate of 10% per annum from the date of filing of the complaint till realisation of the said amount. However, since the reimbursement of medical expenses are being allowed along with interest, we feel that the claim of compensation in the sum of Rs. 1,00,000/– by complainant to be on quite higher side. Therefore, we further direct that OP insurance company shall make the payment of Rs. 25,000/– to the complainant towards mental agony and harassment and pain suffered by him and his family on account of repudiation of the cashless insurance claim of the complainant and also clarify that this amount is inclusive of litigation cost. In case the said amount of Rs. 25,000/- is not paid by the OP insurance company to the complainant within one month from the date of receipt of copy of this order, the same shall be recoverable by the complainant along with simple interest at the rate of 10% per annum from the date of this order till realisation of the said amount. A copy of this order each be sent to both parties by post free of cost. This final order be sent to server (www.confonet.nic.in ).

 

 The file be consigned to the record room.

Pronounced in open Forum on  30.5.2016

 

(S K SARVARIA)

PRESIDENT

 

                                           (H M VYAS)

                                   MEMBER