Before the District Consumer Dispute Redressal Commission [Central District] - VIII,    5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No. 364/14.12.2015

Sh. Nishchal Jain s/o Sh. Madan Lal Jain

R/o F-2/141 (SF), Sector-11, Rohini,

Delhi-110085                                                                          …Complainant

                                      Versus

The New India Assurance Company Limited

(through its Chairman)

87, M.G. Road, Fort, Mumbai-400001

Also at:Delhi RO-II, 10^thFloor, Core-I,

Scope Minar, Laxmi Nagar, District Centre,

Delhi-110092.  

Also at: 122-124, Model Basti, Delhi-110005                          ...Opposite Party

                                                                   Date of filing:             14.12.2015

Coram:                                                        Date of Order:            10.07.2024

Shri Inder Jeet Singh, President

Ms. Rashmi Bansal, Member -Female

ORDER

Rashmi Bansal, Member

By the present order, the Commission is disposing of the complaint of the complainant alleging deficiency in services on the part of OP for repudiating his insurance claim which has caused him, financial as well as physical trouble, inconvenience, harassment, mental agony and prays for release of claim amount along-with compensation for deficiency in service and litigation cost.

1. Case of complainant
   1. It is the case of the complainant that he took Mediclaim policy from OP in the year 2005 for his family consisting of himself, his wife and his minor son and in the year 2006 after the birth of second son the same was renewed for his family including the younger son and since then he has been renewing the policy by paying regular premium continuously, without break and till date (at the time of filing the complaint) the policy is in force. The OP has assured the complainant for cashless facility in all major hospitals and for timely and prompt services. The complainant has provided details of policies and the premium paid since 2005 till 05.01.2016, as follows:-

1. It is submitted by the complainant that the wife of the complainant was admitted on 28.08.2014 at Fortis Hospital, Gurugram and OP was immediately intimated, however, OP did not approve the cashless facility and complainant had paid an amount of Rs. 5 lakh required for the surgery of his wife, taken place on 29.08.2014, of “Right Sub-occipital Retromastoid Retosigmiod Craniotomy and Excision of Tumor with Right Facial Never Repire with Sural Nerve Interposition Graft and Right Sided Tarsorrhaphy” and was discharged on 03.09.2014. Complainant has lodged  claim no. 122081404380 of Rs. 4,77,935/- with the OP against policy no. 32010334132500000687 alongwith all the necessary documents in respect of said claim and also has provided additional information and assistance, as and when required by OP, despite that OP failed to reimburse the entire claim of the complainant and has only passed Rs. 2,15,124/- against the claim of Rs. 4,77,935/-.
2. It is also submitted that after completion of 2 months of discharge of the wife of the complainant, another claim bearing no. 122081404380-A of Rs.69,679/- was lodged against the same policy alongwith all documents, however, OP has passed Rs. 6,847/- only against the claim of Rs. 69,679/-.
3. Complainant has filed a complaint dated 30.12.2014 to the Grievance Redressal Committee of the OP which was declined vide order dated 09.01.2015 on the ground that the sum assured is restricted to Rs. 3,00,000/-  of the policy year 2010-11 only in terms of clause 4.1 of the policy, which deals with pre-existing disease. The complainant submits that the said reason is against the norms of IRDAI (Insurance Regulatory and Development Authority of India) which provides the definition of pre-existing disease as follows:-

“it is a medical condition/disease that existed before you obtained health insurance policy, and it is significant, because the insurance companies do not cover such pre-existing conditions, within 48 months of prior to the 1^st policy. It means, pre-existing conditions can be considered for payment after completion of 48 months of continuous insurance cover.”

1. It is further submitted that OP has failed to discharge its legal duties by partially repudiating the claim of the complainant, which is mala-fide, illegal and deliberate, resulting in deficiency, fault, imperfection, shortcoming or inadequacy on its part, because of which the complainant has suffered financial losses, mental agony and harassment. The OP has utilized the same for its own benefit and wrongfully enriched to itself and has caused wrongful losses to the complainant. The complainant prays for reimbursement of the claim amount of Rs. 3,25,643/- alongwith interest at the rate of 18% p.a., compensation of Rs. 2 lakh for deficiency rendered by OP in repudiating his genuine and legal claim, causing him  mental trauma and physical harassment and a cost of Rs. 25,000/- in respect of the present complaint.

2. Upon notice OP appeared and has filed its written statement stating that there is no deficiency of service on its part as the claim is settled as per terms and condition of the insurance policy. OP has not disputed the issuance of above-mentioned policies to the complainant, admission to the hospital, surgery and treatment of the wife of the complainant, however, submitted that the patient was diagnosed for Right Sided P Angle (VIII CN) Schwannoma and was  admitted with history of right sided hearing loss for 6 years and subsequently developed right sided facial palsy, difficulty in chewing, deglutition and diplopia (occasional) and was admitted for further evaluation and management as per discharge summary of the hospital. OP submits that since the wife of the complainant was admitted with a  pre-existing disease which is covered only after 4 consecutive claim free policy period as stipulated in condition 4.1 of the insurance policy, therefore his claim was declined in part as any complication arising from pre-existing disease/ailment/injury is considered as a part of pre-existing condition. This exclusion is deleted after 4 consecutive claim free policy if there was no hospitalization for the pre-existing disease/ailment/condition/injury during said 4 years. Accordingly the maximum liability is restricted to the sum insured existing prior to completion of 4 consecutive year i.e. of policy no. 320103/34/09/13/401690 effective from 06.01.2010 to 05.01.2011 where the maximum sum insured is Rs. 3,00,000/- . Further, the room rent and the ICU claim by the complainant are more than the entitled category, hence, the charges payable are restricted to the charges applicable to the entitled category as per condition no. 2.6 of the policy. The OP has provided detailed deduction sheet along-with intimation letter dated 09.12.2015 to the complainant. OP submits that the subsequent claim of the complainant for Rs. 69,679/- was duly passed for Rs. 6,847/- as per the detailed claim settlement letter dated 05.01.2016 sent to the complainant. Therefore, the claim of the complainant is rightly settled and the complaint is not maintainable and liable to be dismissed. OP also submits that insurance policy being a contract between the parties and bound by the contract and it has to be strictly construed to determine the liability of the insurer as per stipulations contained in it and no artificial far-fetched meaning can be given to the words appearing in it. This has been the consistent interpretation of the higher courts vis a vis the terms and condition of the insurance.
3. Both the parties have filed their respective evidence alongwith documents in support of their case.
   1. Complainant has filed copies of all the policies (colly), copy of claims made to the OP (colly) and copy of the complaint dated 30.12.2014, copy of additional letter dated 09.01.2015, copy of rule of IRDAI available on official website, death certificate of wife of the complainant.
   2. In support of it’s case OP has filed discharge summary, policy terms and condition, detailed deduction sheet dated 05.01.2016, letter dated 09.01.2015, claim settlement letter dated 05.01.2016.
4. The Commission has heard the arguments of both the parties and perused the documents on record.
   1. The points for determination are :

1. Whether the exclusion relied upon by OP for rejecting the claim of the complainant applies on facts of the case of the complainant?
2. Whether OP is justified in considering the claim of the complainant under policy no. 320103/34/09/13/401690 effected from 06.01.2010 to 05.01.2011? 
3. Whether complainant is entitled for any relief ? if yes, what would be the relief?
   1. The admitted facts of the case are:
      1. The complainant  had obtained an insurance policy from the OP for the first time in 2005;
      2. The same was duly renewed from time to time and is still valid and subsisting (at the time of filing of the present complaint);
      3. The hospitalization of the wife of the complainant on 28.08.2014;
      4. Filing of claim no. 122081404380 and 122081404380 A under policy no. 32010334132500000687, valid for the period of 06.01.2014 to 05.01.2015;
      5. The part payment of the above stated claims of the complainant were made by OP under policy no. 320103/34/09/13/00001690 for tenure 2010-2011 (06.01.2010 to 05.01.2011);
   2. OP has filed terms and conditions of the policy showing clause 4.0, dealing with ‘exclusion’ and  its sub - clause 4.1 reads as:

“4.1 pre-existing diseases/condition: all disease/injuries/conditions, which are pre-existing when the cover incepts for the first time (except as shown hereunder). Any complication arising from pre-existing disease/ailment/injury will be considered as a part of pre-existing condition. This exclusion will be deleted after four consecutive claim free policy year provided there was no hospitalization for the pre-existing disease/ailment/condition/injury during the said four years of insurance with our company.”

1. Clause 4.1 of the policy explicitly makes out that the exclusion clause is applicable from the inception of the policy for the first time and extend up to 4 years. The documents on record show that complainant has taken the policy from OP for the first time in the year 2005 which fact is admitted by OP, therefore, as per exclusion clause, 4 years shall start from 2005 and end up in 2009 and thereafter, the exclusion clause shall have no applicability upon the policy of the complainant and he will be eligible for the 100% claim or sum insured under the policy. The wife of the complainant was admitted in the hospital for the treatment on 28.08.2014, i.e. beyond the period of exclusion clause which was ended in 2009. Therefore,  the exclusion relied upon by the OP for rejecting the claim of the complainant does not apply on facts of the case. Therefore, point A is determined accordingly.
2. Further, the admitted date of the admission of wife of the complainant to the hospital is 28.10.2014,  that means,  the claim of the complainant has to be dealt with the policy in subsistence at that point of time i.e. under the policy no. 32010334132550687 effective from 06.01.2014 to 05.01.2015 for which sum assured is Rs. 8 lakh for his family members on which premium has been paid by the complainant. The OP failed to justify, within the terms of insurance contract,  for invoking policy of year 2010-11 or clause 4.1 but when claim is covered under the policy of year 2014-15. Since, it is clear that exclusion clause is not applicable and ended in the year 2009 itself and the same is not applicable for the policy year 2014-15, therefore, this Commission finds no rational behind the consideration of the complainant’s claim into the policy in the year 2010-11 by the OP. The whole working of the OP is beyond the rules / regulations, terms and conditions of the policy and the OP has not justified for invoking insurance policy of tenure w.e.f. 06.01.2010 to 05.01.2011,therefore, point B is determined that OP is not justified in considering the claim of the complainant under policy no. 320103/34/09/13/401690 effected from 06.01.2010 to 05.01.2011. 
3. On the basis of above discussion, this Commission is view that denial of the claim of the complainant by the OP is arbitrary, without any valid ground and contrary to terms and conditions of the policy and amounts to deficiency of services on its part because of which the complainant has suffered financial loss, physical trauma, harassment and mental agony and is entitled to the relief claimed. The prayer of the complainant is in respect of claim of balance amount of Rs. 2,62,811/ with respect to claim no. 122081404380 and Rs. 62,832/- with respect to claim no. 122081404380-A, i.e. claim of the complainant is for a total balance amount of Rs. 3,25,643/- against OP. Therefore, OP is directed to pay an amount of Rs. 3,25,643/- to the complainant towards his insurance claim. The complainant has also claimed  18% interest upon the balance amount of Rs. 3,25,643/-. Considering facts and circumstances of the case as well as the fact that complainant was deprived of his valid claim and had to part away with his money in paying the hospital bills and expenses, this Commission considers interest @6%p.a. justified computed from the date of rejection of the claim i. e. 09.01.2015 till its realization by the complainant. Further, complainant has also prayed for compensation of Rs. 2 lakh for deficiency rendered by OP in deciding claim. By considering totality of the circumstances of granting only the part of the claim and denial of the remaining part of the claim of the complainant by OP as discussed above, has caused inconvenience, harassment, mental agony, financial loss and physical trouble to the complainant. Despite having valid insurance policy and despite being diligent in paying the premium regularly, the complainant had to suffer due to irrational decision of the OP, therefore, complainant’s plea for entitlement of compensation is found justified  and  is quantified to Rs. 50,000 /-  in this situation. Further, the complainant has also claimed cost of Rs. 25,000/-. Since complainant had to initiate legal action against OP in the absence of settlement of his insurance claim by OP, which in the opinion of this Commission makes out him entitled for the cost as claimed i.e., Rs. 25,000/- allowed in favour of complainant and against OP.

5. Accordingly, complaint is allowed in favour of complainant and against OP and OP is directed :-
   1. to reimburse the complainant an amount of Rs. 3,25,643/- along with interest @ 6% p.a. from the date of rejection of the claim which is 09.01.2015 till its realization by the complainant;
   2. to pay compensation of Rs. 50,000/- towards harassment and trouble to the complainant;
   3. to pay cost of Rs. 25,000/-

OP is directed to pay the above said amount within 45 days from the date of receipt of this order failing which the interest shall increase from 6% p.a. to 9% p.a. from the date of rejection of the claim i.e. 09.01.2015 till its final realization by the complainant besides compensation and cost to the complainant.

6. Announced on this 10^th July 2024.  Copy of this Order be sent/provided forthwith to the parties as per Rules under CPA 2019 besides to upload on the website of this Commission.