Punjab

Ludhiana

CC/16/295

Harish Jain - Complainant(s)

Versus

National Ins.Co.ltd - Opp.Party(s)

Rajeev Goel Adv.

06 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 295 of 21.04.2016

Date of Decision          :   06.12.2016

 

Harish Jain aged about 40 years son of Sh.Jaininder Kumar Jain r/o H.No.20, Kidwai Nagar, Ludhiana. 

….. Complainant

Versus 

1.National Insurance Company Limited, Branch Office at VI, G.T.Road, Miller Ganj, Ludhiana-141003.

2.Park Mediclaim, TPA Pvt. Ltd., Third Party Administrator Health Services, 702, Vikrant Tower, Rajindra Place, New Delhi-110008.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Rajeev K.Goyal, Advocate

For Ops                         :       Sh.M.S.Jassal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant got Parivar Mediclaim policy bearing policy No.401603/48/14/8500000489 from OP1 with validity period w.e.f.26.9.2014 to 25.9.2015. Even he got Happy Family Floater policy from Oriental Insurance Company Limited with validity period from 27.9.2011. That policy was ported with Religare Health Insurance in the year 2013 vide policy No.10041827 for the period from 26.9.2013 to 25.9.2014. Thereafter, the said policy was ported to mediclaim policy referred above with OP1 by paying premium of Rs.7548/-. On 29.3.2015, the complainant suffered with complaint in left shoulder associated with ghabrahat(irritation). Complainant was admitted in the Dayanand Medical College & Hospital, Ludhiana (hereinafter in short referred to as ‘DMC & H, Ludhiana’) on 1.4.2015 and there various tests were performed on him. However, the complainant was managed conservatively by doing of Coronary Angiography on 2.4.2015. Complainant was discharged after such treatment on 8.4.2015 and he thereafter, immediately informed Ops. Even the complainant submitted medical claim form along with original documents with agent Mr.Varun Gupta. Claim for Rs.1,45,562/-, for incurred expenses on medical treatment, was submitted by the complainant, but the agent Mr.Varun Gupta did not take steps for following up the medical claim. Rather, said agent misplaced the original documents. Thereafter, on advise of Ops, complainant provided his duly sworn affidavit dated 11.8.2015 regarding non submission of the original documents with the prayer for processing the claim on basis of the provided photostat copies. Cancelled cheque and photocopy of passbook even was supplied by the complainant to Ops on their request for settlement of claim expeditiously. In affidavit dated 11.8.2015, the complainant disclosed specifically that he has not claimed any amount against the original papers with any insurance company or financial institution/Government Institution. That affidavit along with letter was received by the Ops on 11.8.2015. Even the complainant complied with all legal formalities as per demand of Ops, but Ops failed to settle the claim on one pretext or the other, despite submitting repeated requests and reminders through emails as well as letters. OP2 (TPA) vide letter dated 2.2.2016 informed the complainant that his mediclaim of Rs.1,44,674/- has been approved in terms of the policy coverage, exclusion and conditions after disallowing the amount of Rs.888/- as mentioned in the letter. Even complainant was called upon to send his consent for settlement of the claim for Rs.1,44,674/- in full and final satisfaction. In response to that letter of 2.2.2016, the complainant submitted his consent for settlement of claim for Rs.1,44,674/- for full and final satisfaction of claim. However, OP1 has malafide disallowed the claim without sufficient and reasonable cause by disclosing that file has been closed as ‘No claim’. Complainant was informed accordingly vide letter dated 8.3.2016. Request submitted through email or otherwise thereafter, did not entail any result and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to pay Rs.1,44,674/- as medical claim. Compensation of Rs.50,000/- on account of mental torture, agony and financial loss claimed along with interest @12% per annum. Cost of complaint also sought.

2.                In written statement jointly filed by Op1 and OP2, it is pleaded interalia as if complaint barred in view of section 26 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); complaint against OP1 and OP2 is not maintainable because of non fulfillment of the requirements of condition no.5.6.4 of the policy in question. Admittedly, the complainant obtained Pariwar Mediclaim Insurance policy in question and he remained admitted in DMC & H, Ludhiana from 1.4.2015 to 8.4.2015 with diagnosis of Hypertension, Acute Coronary Syndrome and Vitamin D Deficiency. Admittedly, the complainant underwent Coronary Angiography followed by POHA TO LCX on 2.4.2015. Admittedly, after receiving information from the hospital, OP2 wrote letter dated 7.4.2015 to DMC & H, Ludhiana for requesting them to provide further documents/information, so as to enable it to process the cashless request. Thereafter, OP1 received letter dated 22.7.2015 on 8.8.2015 from the complainant, in which, he alleged that the original documents have been given to Mr.Varun Gupta, agent, for reimbursement of the claim. Op1 through letter dated 5.8.2015 to OP2 disclosed about receipt of the other documents from the complainant. Even the complainant sent letter dated 11.8.2015 along with his affidavit to OP2 regarding non submission of the original papers. Request through this letter was submitted for processing the claim on basis of photostat copies and cancelled cheque and photo copy of passbook for NEFT/RTGS details were sent. OP2 sent letter dated 26.8.2015(wrongly mentioned as 26.8.2016) to OP1 to the effect that the complainant submitted duplicate documents by claiming that the original documents were misplaced by his agent. OP2 sought confirmation from Op1 to the effect as to whether the claim will be processed on the basis of photocopies or not. OP2 also sent letter dated 28.10.2015 to the complainant for calling upon him to submit the requisite documents. However, the complainant did not submit the requisite original documents to OP1 and OP2 inspite of various letters and reminders.    OP2 after going through the submitted documents sent letter dated 27.2.2016 to OP1 for observing that the complainant has submitted all the photostat copies of the documents only due to misplacement of the original documents by the agent. As the policy did not fulfill the condition 5.6.4 of the policy and that is why the

claim of the complainant was not admissible. So, OP2 sent the claim file to OP1 for necessary action and OP1 after going through the same, repudiated the claim on 8.3.2016. That repudiation letter was sent to the complainant. Condition no.5.6.4 of the insurance policy is reproduced in the written statement. Each and every other averment of the complaint denied by praying for dismissal of the complaint with costs.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C28 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.R.K.Wadhwan, Senior Branch Manager along with documents Ex.R1 to Ex.R20 and then closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                   Admittedly, the complainant purchased the policy in question Ex.C4=Ex.R1 issued with validity period from 26.9.2014 to 25.9.2015 after portability of the same from the earlier policies purchased through Ex.C1 to Ex.C3. Undoubtedly, the complainant remained admitted in DMC & H, Ludhiana for treatment through Coronary Angiography for period from 1.4.2015 to 8.4.2015. That fact even revealed by contents of discharge summary Ex.C5. Bills of hospital and carried out   tests etc are produced on record as Ex.C6 to Ex.C17. On submission of claim by the complainant, the same was processed by OP2. Op2 through letter           Ex.C26 informed as if claim for Rs.1,44,674/- approved in term of the policy coverage, exclusions and conditions. For enabling the transfer of claim proceeds, complainant was called upon to send consent for settlement as well as bank detail account etc., as mentioned in Ex.C26 itself. In pursuance of this recommendation of TPA, letter Ex.C27 was issued by OP1 to the complainant for informing him that he has submitted the photostat copies of documents by claiming that the original were misplaced by his agent, but due to non fulfillment of condition no.5.6.4 of the policy in question, the claim is not admissible. After receipt of this repudiation letter Ex.C27, complainant entered into correspondence through email as disclosed by contents of Ex.C28. Vide letter Ex.R3, the complainant was asked earlier by OP2 to send certain documents and he sent letter Ex.R4 to OP1. Complaint of claim even was lodged with OP1 is a fact borne from the letter Ex.R5 and record of discharge summary along with other record of DMC & H, Ludhiana also produced by Ops as Ex.R6 to Ex.R10. Perusal of Ex.R12 reveals that the complainant requested for processing of his claim on basis of photostat copies and he sent cancelled cheque and photocopy of bank passbook. Affidavit Ex.R13=Ex.C19 also was sent by the complainant for informing that the original documents were sent by him to Mr.Varun Gupta agent, but instead of following up the matter, he misplaced the original documents. Through this affidavit, it was also disclosed that claim on basis of original misplaced documents has not been submitted with any insurance company or financial institution/Govt.instituion. So, from all this documentary evidence available on record, it is made out that claim with respect to the medical treatment of the complainant in DMC & H, Ludhiana for the period from 1.4.2015 to 8.4.2015 was processed by TPA of OP1 and thereafter, recommendation for settlement for sum of Rs.1,44,674/- was submitted by OP2 to OP1. However, the original documents were required by OP1, but the complainant submitted photostat copies only by claiming that the original had been misplaced by the agent Mr.Varun Gupta, with whom, those were deposited. The bone of contention remains as to whether without production of original documents qua treatment or hospital record, settlement of the claim as per recommendation of TPA is permissible or not?

7.                It is vehemently contended by Sh.M.S.Jassal, Advocate representing Ops that agent has no authority to collect the original documents because his role is to fill the form, collect the premium and forward the same to OP1 along with requisite documents and thereafter, it is for OP1, whether to accept the offer for issue of policy in question or not? Certainly, agent to act in matter of issue of policy in the manner indicated by counsel for Ops. Even if that be the position, despite that as affidavit of complainant discloses that he submitted original documents with Mr.Varun Gupta, the agent, who misplaced the same and there is no reason to discard that version and as such, it is obvious that virtually the complainant not in possession of the original documents (after its misplacement), due to which, he cannot produce the same.

8.                 Affidavit of agent Mr.Varun Gupta even has not been filed and as such, fault also lay with the complainant in not leading convincing evidence qua loss of the original documents by Mr.Varun Gupta, agent. However, in case the assertions submitted by the complainant through affidavit Ex.R13=Ex.C19 later on found to be false, then criminal case can be registered against the complainant and the complainant even can be made to reimburse the amount (if any) got by him. Therefore, interest of Ops will remain safe even on payment of claim as approved by TPA, but the authenticity of the documents needs be ascertained by OP1 before disbursing the amount of claim, if any.

9.                Clause 5.6.4 of terms and conditions of policy Ex.R2 undoubtedly provides that claim to be supported with the following documents and those to be submitted in the prescribed time limit. Those documents are as under:-

i)Completed claim form.

ii)Original bills, payment receipts, medical history of the patient recorded, discharge certificate/summary from the hospital etc.

iii)Original cash-memo from the hospital(s)/chemist(s) supported by proper prescription.

iv)Original payment receipt, investigation test reports etc., supported by the prescription from attending medical practitioner.

v)Attending medical practitioner’s certificate regarding diagnosis and bill receipts etc.

vi)Surgeon’s original certificate stating diagnosis and nature of operation performed along with bills/receipts etc.

vii)Any other document required by company/TPA.

Further a Note appended on clause 5.6.4 of terms and conditions of policy Ex.R2 provides as under:-

“In the event of a claim lodged as per clause 5.9 of the policy and the original documents having been submitted to the other insurer, the company may accept the documents listed under clause 5.6.4 of the policy and claim settlement advice duly certified by the other insurer subject to satisfaction of the company.”

10.              In view of this, it is vehemently contended by Sh.M.S.Jassal, Advocate representing Ops that unless the original documents submitted by the complainant, he is not entitled for the claimed amount. Though, said submission of counsel for Ops looks ex-facie as correct, but in fact the same is not so because in case, a party either personally or through employed agent unable to submit the original documents, due to misplacement of the same, then it does not mean that he is denuded from receiving the due claim amount. Clause 5.6.4 of Ex.R2 calls for submission of original documents, but the same is silent regarding outcome emanating on account of non submission of original documents. If a party misplaces the original documents, then his remedy for claiming the amount is not barred at all because the alternate available with OP1 has to be taken note of for ascertaining the truth. Clause 5.6.4 does not at all prohibit OP1 to disburse the claim in the event of non production of the original documents. Rather, clause 5.6.4 of Ex.R2 provides the safeguard in respect of the ascertainment of genuineness of the claim and that is why production of the original documents considered essential. If the production of original documents become impossible for the claimant due to misplacement of the original, then this does not mean that claimant should suffer altogether.

11.              As per law laid down in case Avneet G Singh vs. ICICI Lombard General Insurance Company Limited and others-2014(2)CLT-374(Chandigarh State Consumer Disputes Redressal Commission, U.T.Chandigarh), in case, complainant provides the medical record available with her only, then the insurance company can collect the non available medical record from the hospital concerned also. When such is the legal position, then certainly, repudiation of claim due to non production of original medical record alone is unreasonable and unjust. So, Op1 company can verify the authenticity of the submitted photostat copies of the record from the concerned hospital i.e. DMC & H, Ludhiana. This verification by OP1 is possible, particularly when documents Ex.C5 to Ex.C16 has already been made available by the complainant to OP1. As consequence of repudiation of claim owing to non submission of original documents is not envisaged anywhere in Ex.R2 and as such, claim of    complainant must not be repudiated on technical grounds alone. It is so because the standard of proof in consumer cases is not the same as is required in criminal cases. Rather, claimant must shown that pleadings and stand taken by him is tangible and acceptable. This in fact is the ratio of case titled as Uttam Sarkar vs. Management of Tura Christian Hospital and others-2014(2)Consumer Law Today-421(M.L.). Besides, in case of Sunil Sharma vs. National Insurance Co.Ltd-II(2015)Consumer Protection Judgments-46(Delhi State Commission), it has been held that provisions of The Evidence Act or of Civil Procedure are not applicable in the proceedings before the Consumer Fora. Further, it has been laid down in this reported case that disputes are to be decided on yardsticks of reasonableness, probability and that principles of natural justice has full application in adjudication of the consumer complaints. In view of this legal position, certainly the claim of the complainant could not have been repudiated just on ground of non submission of original documents by him. Rather, the photostat copies of the documents as available with the complainant had already been submitted by him with Ops and as such, for dispelling any doubt qua the authenticity of the produced record, Ops can verify about the authenticity thereof from the hospital concerned or the authority concerned. Help of the complainant in such authentication even can be got by the Ops. In such circumstances, repudiation of claim on account of non production of original documents alone is unjustified and unreasonable,particularly when terms of Ex.R2 is silent regarding the consequences of   non production of original documents. Terms of Ex.R2 only provides for production of original documents, but without revealing about the consequences of non production of the original documents. So, test of reasonableness and probability needs be applied for ascertaining that genuine claim of complainant (if any) is not frustrated due to technicalities alone. In such circumstances, Ops must reconsider the claim of the complainant by verifying the authenticity of the produced photostat copies of documents by him with it. Reasonable time for such verification is required. Complainant in view of non submission of affidavit of Mr.Varun Gupta, Agent unable to lead convincing evidence qua misplacement of the original documents and as such, he is not entitled for any compensation or litigation expenses. Mr.Varun Gupta even has not been impleaded as party and nor called as a witness and as such, ends of justice warrants that the complainant should not get any benefit for his own wrongs. So, complainant not entitled for any compensation or cost at all.

12.              Therefore, as a sequel of the above discussion, complaint partly allowed in terms that Ops will verify the authenticity of produced photostat copies of the documents of complainant from the concerned and after such verification, will reconsider the claim of complainant within 90 days from the date of receipt of copy of order. No order as to compensation or to costs.  Copies of order be supplied to parties free of costs as per rules.  

13.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:06.12.2016

Gurpreet Sharma.