Before the District Consumer Dispute Redressal Commission, Central District, ISBT Building,  5th Floor,  Kashmere Gate, Delhi.

Complaint Case  No. 335/2016

                                                Versus

OP1   National Insurance Company Ltd.

Office Code: 350304

Office Address: New Asaf Ali Road, Branch-1,

Jeewan Vikas Building, 30-31 A, Asaf Ali Road,

New Delhi-110002.

OP2   Safeway TPA Services Private Ltd.,

           815, Vishwa Sadan, District Center,

          Janak Puri, New Delhi-58                                ...Opposite Party

Quorum: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai, Member

              Ms. Shahina, Member (Female)

Inder Jeet Singh, President

ORDER-

1. (Introduction):  Initially, the case was filed against OP1, however the complaint was got amended and consequently name of OP2 was got impleaded. The case of complainant is of deficiency in services as complainant’s husband had taken medi-claim policy from the OP1, so that family can get treatment up to Rs. 3,00,000/- from any private hospital and the policy was also renewed in subsequent year. Later when during the currency of policy, the complainant was got treated, admitted and surgery was performed, the amount for treatment was also approved by the OP2 but later the amount was refused, consequently the complainant had to arrange the amount on loan and to pay the medical bills. Whereas, the case of OPs is that there was no deficiency in services, in fact complainant was not entitled for any amount under the terms and conditions of insurance policy, there was specific covenant and because of exclusion clause the claim of complainant was repudiated properly.

2.1 (Matrix of Complainant’s Case):  Complainant’s husband is a mechanic and he earns Rs. 9,000/- per month, the complainant’s husband was allured to purchase medi-claim policy of OP1 as the family can get treatment up to Rs. 3,00,000/- against payment of meager amount of premium, the doctors of private hospital and staff treat the patient with love, affection and care as compared to Government hospital. Accordingly, medi-claim policy was taken for period 30.06.2014 to 29.06.2015, policy was issued (being Annex.A/Exh.  CW1/1 to the complaint/affidavit), for cashless cover up to Rs. 3,00,000/- which was got renewed from 30.06.2015 to 29.06.2016, policy was issued (being Annex. B/Exh. CW1/2 to the complaint/affidavit.) No proposal form was got signed from the complainant. Moreover, no terms and conditions either for first policy or renewal policy was supplied to the insured.

2.2 The complainant felt pain in her abdomen, she got her examined from Sir Ganga Ram Hospital and after examination it was diagnosed that she was suffering from cholelithiasis, which needs surgery, whereas she was not suffering from any pre-existing disease.

          The medi-claim policy was shown to the doctors in Sir Ganga Ram Hospital on 21.04.2016, the OP1 was contacted by the office of said hospital prior to admission to take permission for the said operation of removal of stone from her gallbladder and supplied them estimate bill of Rs. 58,000/- for the said operation. The OP1 National Insurance Co. Ltd. gave consent through its agent OP2 – Safeway TPA Services Pvt. Ltd. for Rs. 58,000/-, consequently the complainant was admitted in the hospital with effect from 21.04.2016 to 23.04.2016 and operation was performed on 22.04.2016.

2.3 At the time of discharge on 23.04.2016, the OPs had not cleared the bills but sent a letter retracting the permission given on 21.04.2016, consequently the complainant was compelled to arrange the amount with great difficulty to clear the medical bills from her own pocket, she also spent Rs. 10,000/- more during her treatment. The amount has been withheld by the OPs by taking pretext that it was the second year policy and the disease of cholelithiasis is covered after completion of two years. Subsequently, the OPs repudiated the claim of complainant by letter dated 02.05.2016 (being Annex. C/Exh. CW1/3 to the complaint/affidavit) on the ground that stone problem is not covered in the policy for two years but without any plausible explanation as to why consent was given at the time of admission and operation of the complainant. The complainant had paid the medical bills, the medical documents along with bills are matter of record (now Annex. D/Exh. CW1/4 to the complaint/affidavit.) The authorization letter for treatment and guarantee of payment was issued on 21.04.2016 (now Exh. CW1/6.)

          Whereas, the complainant belongs to low strata of Society and in case the OPs were not to allow the permission prior to the operation on the exception of policy, if so, the complainant would have taken the treatment from Govt. Hospital. The complainant borrowed amount from relative on interest at the rate of 2% per month, she was to pay interest of Rs. 1,300/- per month, which happened because of the lackadaisical approach and the things attributed to OPs. The OPs are bound by the principle of estoppels that once there was promise, its acceptance and contract, the OPs cannot back out from the contract, the complainant has suffered a lot at the hands of OPs. The complainant has to engage the lawyer to institute the complaint. That is why the complaint was filed for claim of Rs. 1,26,500/- (being viz. medical expenses of Rs. 70,000/-, damages for mental pain and agony for not clearing the amount of Rs. 25,000/-, conveyance charges of Rs. 10,000/-, litigation expenses of Rs. 25,000/- and interest component of Rs. 6,500/-). The complainant also claims interest at the rate of 9% pa from the date of filing the complaint till its realization.

3.1 (Case of OP1): OP1 opposed the complaint of complainant, by filing the reply splitting it into three parts under the heading of preliminary objections, preliminary submissions and reply on merit. Firstly, the complaint is liable to be dismissed as there is no deficiency on part of OP1, the proper form of adjudication is civil court and not under the special statute of the Consumer Protection Act. In preliminary submissions, OP1 pleaded that policy was issued initially from 30.06.2014 to 29.06.2015, it was renewed by another policy from 30.06.2015 to 29.06.2016, which was subject to terms and conditions stated in the policy to be read with the terms and conditions, more particularly exclusion clause 4.3 (being Annex. R1), which reads “4.3 the following diseases/treatment are subject to a waiting period of two years………..(xii) – Calculus disease).” Further, it is a false claim, it is liable to be dismissed with exemplary cost and the claim of complainant was rightly repudiated. On merits, it is not a parawise reply of the complaint but reiteration of preliminary objection to be read as reply to the complaint.

3.2  OP2 had appeared in the proceedings, memo of appearance was filed on 07.07.2017 and it was specifically stated that no reply to complaint is intending to be filed by the OP2.

4.1 (Rejoinder of complainant):  The complainant filed rejoinder to the reply of OP1, she reiterates the entire facts mentioned in the complaint and the reply of OP was opposed on two counts specifically, firstly the insurer was never provided with the terms and conditions of the policy either on the first occasion or on its renewal and secondly the plea of OP1 has also been opposed, which refers the clause 4.3. the case of complainant is not covered by clause 4.3 even if for the sake of argument, that clause is read with clause no 4.2 (the complainant is not admitting the receipt of terms and conditions of policy as it was never supplied but to demonstrate that the OP1 is concealing clause 4.2 which nullifies clause 4.3). As per clause 4.2 “that any disease contacted by the insured from the 30 days from the inception of the policy shall be excluded.” It is clear that the case of complainant is not of pre-existing disease.

4.2  During the pending of this complaint, an issue of proposal form was raised for which a brief application was filed on behalf of OP1 that the proposal form of the complainant is missing and it is not located in the office of OP1.

5. (Evidence of Parties): Complainant filed her evidence by way of affidavit, it is on the lines of complaint and documents, which have already been in the matrix of the case of the complainant. She has also filed her identity proof of Aadhar Card (now PW1/5) with the affidavit. On the other side, Shri Gulshan Chawla, Divisional Manager of OP1 filed his affidavit, it is replica of reply except the portion of reply on merit, his affidavit refers terms and conditions no. 4.3 of the policy, which has also been reproduced in the paragraph of case of the OP1 above.

6.1 (Submissions/arguments of Parties): Both the sides have filed their written submissions, the same are also replica of their pleading and evidence.

          However, during oral submissions, Shri Sanjeev Mehta, Counsel for complainant has been to the record as well as emphasis that a contract is entered into by way of proposal and its acceptance, whereas neither there was any such agreement nor the terms and conditions of policy were supplied to the complainant, consequently the so-called clause 4.3 of terms and conditions (Annex.R1) saw the light of day first time in the present proceedings. There is also no proof nor any reply by OP1 to the complaint about furnishing of terms and conditions to the complainant with the first medi-claim policy or its renewal. For want of providing the terms and conditions of policy to the complainant, the same was not binding on the complainant as it cannot be construed a contract between the parties on those terms and conditions; these terms and conditions are alien to the complainant. Reliance is place on (1). M/s Modern Insulators Ltd. vs The Oriental Insurance Co. Ltd AIR 2000 (SC) 1014 (2). Bharat Watch Company through its appellant vs National Insurance Co. Ltd. 2019 (6) SCC 212 (3). United India Insurance Co. Ltd. vs Milap Telecom, 1(2012) CPJ 138 (NC). Thus the said clause 4.3 is not binding on the complainant, otherwise in view of the clause no. 402 of said document, the case of complainant is not covered in any eventuality for want of any pre-existing disease. The claim of complainant cannot be kept in abeyance and she is entitled for claim in the complaint.

6.2 On the other side, Shri Chetanaya Jain Counsel for OP requests that the claim of complainant was repudiated since it was not covering within the terms and conditions of the policy. So far, proposal form is concerned to that effect it is already been informed that the proposal form relating to the present case is missing. While referring the reply, it is reiterated that it was held in National Insurance Company Ltd. vs Surinder Lal Arora  1993 CPJ 403, that nobody should take illegal gains. The claim was rightly dismissed.

7.1 (Findings): We have considered the contentions of both the sides, keeping in view the circumstance brought on record in the form of pleadings as well as evidence apart from their respective contentions. There is no dispute that the insured had got the policy and it was also got renewed, the complainant got the treatment on 21.04.2016 and she was in door patient from 21.04.2016 to 24.04.2016, she was operated on 22.04.2016. The date of treatment and operation was during the valid period of renewed policy. It is also apparent from the record that proposal form was missing from the office of OP1 as well as there is no rebuttal evidence by OPs to the plea of complainant that the insured was not supplied the terms and conditions of policy particularly the clauses 4.3 being vehemently relied upon by the OPs. Therefore, considering the law laid down in the precedent/ case law relied upon by the complainant that when there were no terms and conditions agreed between the parties or no terms and conditions were provided containing clause 4.3, the exclusion clause cannot be invoked against the complainant.

7.2  It is also matter of record and an undisputed fact that the insurance cover was up to Rs. 3,00,000/-, the complainant was admitted in Sir Ganga Ram Hospital after permission from the OPs, at that time the amount of Rs. 58,000/- was approved but the amount was not paid, consequently the complainant got discharged herself by paying the medical bills. Later – on 02.05.2016 by a letter (Annex. C/ Exh. CW1/3), the complainant was informed of repudiation/ rejection of her claim. Simultaneously, the complainant had paid the bills of Rs. 75,906/-. The complainant has made claim of Rs. 70,000/- of medical expenses in the complaint.

          Since, the complainant had paid the amount and there is no proof of terms and conditions of the exclusion clause or its applicability, therefore it would be justified to allow the claim of Rs. 70,000/- as claimed by the complainant in her complaint.

7.3 The complainant was in the state of under treatment and for want of release of amount for her discharge, it added to her grievance of stress and trauma in addition to the physical treatment already in progress and thence after discharge her valid claim was rejected, she suffered mental agony and pain for which damages of Rs. 15,000/- will meet both ends of justice.

7.4 The complainant has claimed interest component apart from litigation expenses, since she was deprived of her money when payment was tendered in the hospital it makes her entitle for interest. Therefore, interest at the rate of 6% pa will meet both ends of justice and she is held entitle for interest for filing of the compliant on 15.09.2016 till its realization.

7.5  The cost is also allowed and it is also quantified as Rs. 10,000/- in favour of the complainant and against the OP.

7.6  In view of the above the complaint is allowed in favour of the complainant and against the OPs jointly and severally that they will pay a sum of Rs. 85,000/- (i.e.Rs. 70,000/- +Rs. 15,000/-) along with interest at the rate of 6% pa from 15.09.2016 till realization of amount. Cost of Rs. 10,000/- is also allowed in favour of complainant and against the OPs. The OPs are directed to release the awarded amount to the complainant within 30 days.

8. Copy of this order be sent to the parties as per rules.

            File be consigned to record room after proper pagination and extra sets be returned to the parties as per rules.

Announced on the 15th of  December 2022.