Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-232/25.09.2017
Asha Katyal, r/o. of H. No. 688, Gali No. 21,
Joshi Road, Karol Bagh New Delhi-110005 ...Complainant
Versus
OP1: National Insurance Company Limited
2nd Floor, 30/31A, Asaf Ali Road, New Delhi-110002
Also at: 101-106, N1, BMC House,
Connaught Place, New Delhi-110001
OP2: Vipul MedCorp TPA Private Limited
515, Udyog Vihar, Phase V, Gurgaon,
Haryana-122016 ...Opposite Party
Order Reserved on: 04.01.2023
Date of Order: 03.02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1: (Introduction to the disputes of the parties): Complainant’s husband, Shri Harish Kumar Katiyal (since deceased, expired on 24.01.2016) had been availing medi-claim family floater insurance policy from OP1 under 'Parivar Medi-claim Policy' since 23.03.2010 and getting it renewed from time to time and the last insurance policy was for period from 23.03.2015 to 22.03.2016 vide policy no. 361601/48/14/8500003339 (it is at page no. 34-35 of the paper book and its terms and conditions are also annexed (at page no. 36 to 43). Its exclusion clause no. 4.11 is relevant in the present complaint (the clause no. 4.11, at page no. 40 reads as 'expenses on vitamins and tonics unless forming part of treatment for injury or disease as certified by the attending physician'). The complainant’s husband had also availed another medical policy no. 390401/48/15/8500002128 for period from 09.10.2016 to 08.10.2016 known as BOI National Swasthya Bima Policy (at page no. 44-50 paper-book and its terms and conditions at page no. 51-62) for him and his family members, its exclusion clause no. 4.11 is also relevant for the present dispute (this clause no. 4.11 at page no. 55 reads as ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances.’
1.2: The insured Harish Kumar Katiyal was treated in BLK Super Specialty Hospital, where he succumbed on 24.01.2016 during treatment. When the complainant had lodged claim under both the policies issued by OP1 viz. policy no. 361601/48/14/8500003339-Parivar Medi-claim Scheme and policy no. 390401/48/15/8500002128-BOI National Swasthya Bima Policy, however, the claimant's claims was declined by OP1 by invoking exclusion clause no. 4.11 on page 55 of BOI National Swasthya Bima Policy into claim of the Parivar Medi-claim Scheme policy, whereas Parivar Medi-claim Scheme consist some other conditions in clause no. 4.11 (at page no. 40); both the exclusion clauses as 4.11 are different. Because of these circumstance, the complainant protests that clause no. 4.11 of other policy was wrongly invoked,
1.3: Whereas the case of opposite party is that the claim was rightly rejected by invoking an exclusion clause no. 4.11 since clause no. 4.11 in both the cases is same. The claim of complainant was rightly rejected, even by Insurance Ombudsman.
1.4: The written statement was filed under the seal and signature of OP1/ National Insurance Company Ltd. duly supported by affidavit of Shri Raghunath Pawar, A.O. of OP1, however, the title of written statement is composite [i.e. written statement on behalf of answering OP and also of No. 1 & of No. 2], which was opposed by the complainant that it cannot be treated written statement on behalf of OP2 as there was no authorization and authority with OP1 to file it on behalf of OP2. Considering the totality of record as well as the objection raised by the complainant, since the OP2 is a separate legal entity, there is no authorization or Board Resolution by OP2 in favour of OP1 to file the written statement for or on behalf of OP2, consequently, it is decided at the stage, before proceeding further in the matter, that the written statement will be considered of OP1 only. Moreover, the vakalatnama is also exclusively by Shri R.N. Pawar of OP1 in favour of its counsel, there is no even authority by OP2 in favour of the counsel to make appearance on behalf of OP2.
2.1 (Case of complainant ) : Complainant Mrs. Asha Katyal is widow of Harish Kumar Katyal, who survived the complainant and their son Rohan Katyal, who has been diagnosed with 50% disability due to mental retardation with autism. The OP1/National Insurance Company is insurer and OP2/ Vipul MedCorp TPA Pvt. Ltd. is its TPA. The complainant’s husband in the early 2010 inquired from OP1 and then took Medi-claim policy for him and his family members. It was disclosed to OP1 about Shri Harish Kumar Katyal had pre-existing medical condition of hypertension and diabetes, OP1 offered to provide medi-claim cover under its family floater policy under Parivar Medi-claim Scheme on payment of an additional 25% premium on account of pre-existing medical condition. Under these circumstance, policy was obtained on 23.03.2010 against payment of premium inclusive of additional premium of 25%, apart from GST, [the policy issued has been annexed as C-1 to the complaint]. The said policy was get renewed regularly year by year and the last policy renewed is bearing no. 361601/48/14/8500003339- Parivar Medi-claim Scheme from period 23.03.2015 to 22.03.2016 (paragraph 7 of the complaint also enumerates details of all policies as Annexure- C-2 (colly), which have been briefly referred as Parivar Medi-claim policies against sum insured of Rs. 5 lakhs. The terms and conditions of Parivar Medi-claim policies have also been filed (as Annexure-C). Since there was pre-existing medical condition of complainant’s husband and after considering treatment and consultancy with the doctor, it was considered to have additional family floater insurance policy so that there is collectively be insured for higher sum, the complainant’s husband took another policy for him & his family for sum insured of Rs.5 lakhs from OP1 in collaboration with Bank of India a policy no. 390401/48/15/8500002128- BOI National Swasthya Bima Policy for period from 09.10.2015 to 08.10.2016 against payment of requisite premium and TPA was also OP2 in that policy.
2.2: In January, 2016 the health of Shri Harish Kumar Katyal deteriorated, he was on oral intake from 14.01.2016 thus on 17.01.2016 he was taken to emergency department of BLK Super Specialty Hospital at Pusa Road, where he was admitted but he expired on 24.01.2016. His death summary was prepared (Annexure-C6) which mentions that he was suffering from chronic liver decease for past two years before he was admitted, it is also common that those persons suffering from diabetes can also develop a fatty liver susceptible to cirrhosis even without consuming alcohol in large quantities. He was extended all best efforts in the hospital but he could not survive.
There was medi-claim bill of Rs. 4,75,989/-, which was raised to OP2 in respect of expenses incurred on the treatment of complainant’s husband for its reimbursement under Parivar Medi-claim Policy as well as BOI Policy by furnishing claim form with details of bills paid (Annexure-C7) but it was rejected by letter dated 18.03.2016 (Annexure-C8) by OP2 that the claim was not admissible under the Parivar Medi-claim Policy because her husband had expired due to liver cirrhosis and Pancreatitis caused because of his alcoholic, the claim was not admissible under clause 4.11 of Parivar Medi-claim Policy, being ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances.’ Whereas no such clause 4.11 exists in the Parivar Medi-claim Policy, the rejection of the complaint was shocking and surprised to the Complainant as it was without application of mind on behalf of OP2, it is deficiency in services. Complainant’s husband used to have alcohol occasionally neither he was alcoholic nor misused or abused consumption of alcohol as alleged in the letter dated 18.03.2016. He was suffering from diabetes and hypertension and because of it, he was diagnosed with the chronic liver disease for which he was undergoing treatment prescribed by Dr. Vijender Jain. The OP1 by its letter dated 25.07.2016 (Annexure-C9) rejected the claim of complainant under Parivar Medi-claim Policy by following the steps of OP2 and placing reliance on exclusion clause 4.11.
Whereas, the said clause no. 4.11 is under other BOI Policy and it was not in Parivar Medi-claim Policy. There is lackadaisical and deficient approach of OP1 and OP2 towards the complainant and processing medi-claim. There is also settled law that if a person holds multiple medical policy then claim under each of them must be processed separately. And in case any of the medi-claim policy covers the claim, the same should be admitted and payment is to be made. There is also circular no. IRDA/HLT/REG/CIR/005/01/2017 dated 10.01.2017 by IRDA (Annexure-C-10) which clarifies that in case of processing of claim involving multiple policies then a policy holder can prefer his claim under another policy, if the same has been denied under the policy first preferred by it.
Under these circumstances, the complainant approached Insurance Ombudsman by filing complaint against OP1 under Parivar Medi-claim Policy, however, the claim was not considered by order 23.11.2016 (Annexure-C11).
2.3: That is why, the present complaint for reimbursement of medi-claim of Rs. 4,75,989/-, interest of Rs. 1,05,713/-, compensation of Rs. 5,00,000/-, cost and legal expenses of Rs. 50,000/- against the OPs.
3.1 (Case of OP) : The complaint is opposed by OP1 by way of preliminary objections and submissions apart from reply on merits. The complainant’s husband was alcoholic/drug addict and he expired on 24.01.2016 during his treatment of the disease which was occurred to him due to alcohol. The exclusion clause 4.11 on page no. 55 was rightly invoked, which reads as ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances.’ Moreover, the Ombudsman by its order dated 23.11.2016 had rightly disposed of the claim, while referring the record of complainant that her husband was consuming for the last 5-6 months and was suffering from CLD for the last two years. It is settled law that contact of insurance is governed by terms and conditions contains in the policy, which are framed by IRDA.
3.2: The reply on merits in the written statements are reflection and expansion of material referred in the preliminary objection by supplementing (referring page 55) that clause no. 4.11 of BOI National Swathya Bima Policy ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances.’ and exclusion clause no. 4.11 of Parivar Medi-claim Policy 'expenses on vitamins and tonics unless forming part of treatment for injury or disease as certified by the attending physician' are same. The complainant’s husband was habitual drunkard, which is clear from his disease CLD alcoholic but despite that, he was regularly consuming liquor before 5-6 months before his death. The OP1 also denies all other allegations in the complaint, except that there were two policies taken by complainant’s husband against premium which are matter of record. The complaint is without merit and deserves dismissal.
4. (Replication of complainant) : The complainant filed rejoinder to the written statement of opposite party, it reaffirms the complaint as correct by supplementing reasons and explanations that both the policies are taken and their terms and conditions are to be read independently. The opposite party, in order to deny the valid claim of complainant, adopted the unfair trade practice by invoking non-existent clause in the policy.
5.1 (Evidence) : Complainant, Ms. Asha Katyal led her evidence by detailed affidavit, supplementing with the documentary record filed with the complaint and concluded her evidence.
5.2: On the other side, Shri Raghunath Pawar, A.O., of OP1, who is also author of written statement and vakalatnama, led his evidence for OP1 while referring and relying upon the documentary record, which were also referred by the complainant in her evidence.
6. (Submission of Parties) : The complainant as well as OP1/ National Insurance Company filed their written arguments, however at the time of oral submissions, Shri Dhruv Malik, Advocate for complainant made oral submissions but none argued for OP1. Since written arguments are on record, the same will be considered to appreciate the contentions of both sides.
7.1 (Findings) : The contentions of both the sides are considered keeping in view the case of parties, their respective evidence, which comprises most of the evidence in the form of documents as well as the prime dispute is of clause no. 4.11 of the insurance policy.
7.2: There is no dispute about Parivar Medi-claim Policy and BOI National Insurance Policy issued to complainant’s husband under family floater, the tenure of insurance policies as well as its sum insured of Rs. 5,00,000/- each, apart from Shri Harish Kumar Katyal died on 24.01.2016 during his treatment in the BLK Super Specialty Hospital. There was also no dispute of amount of medi-claim bills of Rs. 4,75,989/- mentioned in claim form furnished to OPs as well as to Insurance Ombudsman but the dispute is with regard to the entitlement, of the complainant for settlement of such medical bills, by virtue of exclusion clause 4.11 in Parivar Medi-claim Policy. The complainant has not pressed in this complaint her claim under BOI National Swathya Bima Policy but under Parivar Medi-claim Policy, since it was not considered by the Insurer.
7.3: Thus, narrow controversy is on the point of exclusion clause, which happens to be 4.11 in Parivar Medi-claim Policy as well as in BOI National Swathya Bima Policy. Since, the OP1 vehemently construes and interprets that exclusion clause no. 4.11 in both the policies is same, it requires to reproduce them together and to compare them to assess whether both are same clauses either expressly or impliedly. The exclusion clause no. 4.11 at page no. 40 of 'Parivar Medi-claim Policy' no. 361601/48/14/8500003339 reads as 'expenses on vitamins and tonics, unless forming part of treatment for injury or disease as certified by the attending physician'. The exclusion clause no. 4.11 at page no. 55 of other medical policy BOI National Swasthya Bima Policy no. 390401/48/15/8500002128 reads as ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/ alcohol or use of intoxicating substances'. On the plain reading of both the clauses, it is manifestly clear that both the clauses are different and it does not require any reasons or explanation or elucidation. Both the clauses are literally different by way of their expressions and they do not convey identical meaning either impliedly or even in remote sense.
7.4: Moreover, the insurance policy is a contract between the parties and its covenant are to be read as it is for its implications and consequences, nothing cannot be added or subtracted for the convenience by a party. It is relevant to mention that 'Parivar Medi-claim Policy' no. 361601/48/14/8500003339 is a complete contract between the parties. Similarly other medical policy BOI National Swasthya Bima Policy no. 390401/48/15/8500002128 is other complete and independent contract between the parties. In United India Insurance Co. Ltd Vs Harchand Rai Lal Chandan IV 2004 CPJ 15, it was held that it is well settled that terms of policy have to be construed as it is and court cannot add or subtract something, policy contract is between the parties and both the parties are bound by the terms of contract. Further the terms of contract has to be strictly read and natural meaning be given to it, no external aid should be sought unless the meaning is ambiguous.
7.5: Whereas, what OPs have done is that in 'Parivar Medi-claim Policy' no. 361601/48/14/8500003339 it subtracted actual exclusion clause no.4.11 'expenses on vitamins and tonics unless forming part of treatment for injury or disease as certified by the attending physician' and introduced/added exclusion clause no.4.11 ‘Drug/ alcohol abuse Treatment arising out of illness/disease/injury due to misuse or abuse of drugs/alcohol or use of intoxicating substances' of other BOI National Swasthya Bima Policy no. 390401/48/15/8500002128, and denied the claim in 'Parivar Medi-claim Policy'. However, in view of settled law, it is not permissible for OPs either under the covenant of contract of insurance policy nor under the law to subtract a clause from a policy and add another clause under the garb of other policy. Moreover, 'Parivar Medi-claim Policy' has been opted from the year 2010 and the latest policy period is period 23.03.2015 to 22.03.2016, which commenced prior to risk cover of other policy BOI National Swasthya Bima Policy from 09.10.2015 to 08.10.2016. Just for the sake of arguments, had the insured not taken the latter policy, then for former 'Parivar Medi-claim Policy', the exclusion clause no.4.11 was 'expenses on vitamins and tonics unless forming part of treatment for injury or disease as certified by the attending physician' to be applied by the OPs. Thus, OP cleverly under the garb of second policy, deny the valid medical claim in other policy. There is no flexibility in the policies to interchange the terms and conditions as attempted by OPs.
7.6: Now another question emerges is if there are more than one policy by the insured or an insured having multiple policy then how to deal with that situation ? The complainant has proved a circular no. IRDA/HLT/REG/CIR/005/01/2017 dated 10.01.2017 by IRDA (which is Annexure-C-10 to the complaint) and its relevant clause (xvii) is reproduced as follows:
“(xvii) -Norms for settlement of claims under multiple policies: On the norms prescribed in Regulation 24 (ii)(2) (Multiple Policies) of IRDAI (Health Insurance) Regulations, 2016, it is further clarified that the policyholder having multiple policies shall also have the right to prefer claims from other policy/ policies for the amounts disallowed under the earlier chosen policy/ policies, even if the sum insured is not exhausted. Then the insurer(s) shall settle the claim subject to the terms and conditions of the other policy/ policies so chosen”.
This is abundantly clear that in case of multiple policies, the claim of insured may be considered in respect of relevant policy which is covering the risk. In the present case the complainant had applied for claim under both the policies by claim form (Annexure-C), however, Parivar Medi-claim Policy, its clause no. 4.11 does not disentitle the claim of complainant under its exclusion clause 4.11 which reads 'expenses on vitamins and tonics unless forming part of treatment for injury or disease as certified by the attending physician', it also does not depict the clause introduced by the OPs to deny the claim.
7.7: Thus, in view of the detailed discussion, analysis, terms of 'Parivar Medi-claim Policy' no. 361601/48/14/8500003339, complainant is held entitled for settlement of her medical bills of Rs. 4,75,989/- which is valid medical claim , which was denied to her by OPs. It is within the limit of sum assured. It has definitely caused harassment to the complainant by misinterpreting the exclusion clause as well as invoking non-existing clause, it is also unfair practice on the part of OP1 & OP2 as well as deficiency in services.
7.8: The gravity of situation is abundantly clear to what extent sufferings, trauma and inconvenience was faced by the complainant for seeking relief of valid medical claim, which was with-held by OP1 & OP2, thus the complainant deserves damages, which are quantified as Rs. 25,000/- in her favour and against the OP1 & OP2, apart from costs of Rs.10,000/-in favour of the complainant against the OP1 & OP2.
7.9: Hence, the complaint is allowed in favour of complainant and against the OP1 and OP2, to pay jointly and severally a sum of Rs. 5,10,989/- (viz. Rs. 4,75,989/- +Rs. 25,000/-+Rs. 10,000/-) within 30 days from the date of receipt of this order.
In case, OPs do not pay the amount within the period prescribed, then OPs will be liable to pay interest @ 07% pa from the date filing of complaint till its realization.
8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules.
9: Announced on this 03rd day of February, 2023 [माघ 14, साका 1944].
