Punjab

Ludhiana

CC/14/148

Pawan Kumar - Complainant(s)

Versus

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

20 Jan 2015

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

CC No: 148 of 11.02.2014

                                                                     Date of Decision: 20.01.2015

Pawan Kumar Sharma s/o Late Sh.Sohal Lal, resident of House No.306, Street no.5, Mohalla Gobindsar, near Jeeto Market, New Shimlapuri, Ludhiana.

                                                                                      … Complainant

                                      Versus

1. National Insurance Company Limited, Branch office Feroze Gandhi Market, Ludhiana, through its Branch Manager.

2. Senior Branch Manager, National Insurance Company Limited, Branch office Feroze Gandhi Market, Ludhiana.

3. Park Mediclaim TPA Private Limited, Third Party Administrator Health Services, 702, Vikrant Tower, Rajendra Place, New Delhi-110008, through its Managing Director.

4. Park Mediclaim TPA Private Limited, C/o Sohna Complex, Room no.11, 2^nd Floor, Miller Ganj, Ludhiana, through its Manager.

5. C.E.O. Park Mediclaim TPA Private Limited, 702, Vikrant Tower, Rajendra Place, New Delhi 110008.

6. Manager, Park Mediclaim TPA Private Limited, 702, Vikrant Tower, Rajendra Place, New Delhi 110008.

                                                                             … Opposite parties

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

 

Present:       Sh.Dalip Garg, Advocate for complainant.

                   Sh.D.R.Rampal, Advocate for OP1 and OP2.

                   OP3 to OP6 exparte.  

                   

                        ORDER

 

(S.P.GARG, MEMBER)

 

1.                The present complaint under section 12 of The Consumer Protection Act (hereinafter in short to be referred as ‘Act’) has been filed by Sh.Pawan Kumar Sharma s/o Late Sh.Sohal Lal, resident of House No.306, Street no.5, Mohalla Gobindsar, near Jeeto Market, New Shimlapuri, Ludhiana (hereinafter to be referred as ‘complainant’) against National Insurance Company Limited, Branch office Feroze Gandhi Market, Ludhiana, through its Branch Manager  and others hereinafter to be referred as ‘OPs’)-directing them to pay a sum of Rs.2.00 lac on account of mental pain, agony and deficiency in service and Rs.22,000/- as legal expenses to the complainant alongwith any other relief. 

2.                Brief facts of the complaint are that complainant alongwith his wife Smt.Manju Sharma and daughters Shewta Sharma and Alisha Sharma obtained a Family Medi-Care Insurance policy, vide policy bearing no.404502/48/11/8500001291 valid from 28.2.12 to 27.2.13 from the OPs in renewal of previous policy bearing no.40450248108500001141 valid from 28.2.11 to 27.2.12. The complainant also availed policy no.4044502/48/12/8500001311 valid from 28.02.13 to 27.2.14. The complainant had been obtaining the insurance policies since 26.2.09 continuously in continuation to the policy obtained by the complainant from National Insurance Company Ltd. without break. In the year 2009, when the complainant has got insurance policy from the OPs, the Ops had got the complainant medically examined from their penal doctor. The Ops every time assured the complainant that it is a cash-less policy and he shall have not to pay the Hospital bill and OP3 to OP6 issued the card. Each time at the time of renewal of the policy in which the name of CMC Hospital is listed for medical treatment. On 8.2.13, the complainant suffered chest pain and got treatment from CMC Hospital, Ludhiana and he was admitted in the Hospital on 8.2.13. At the time of admission for the first time the complainant reported the Hospital authorities that he is having cash less insurance policy from the OPs, but the authorities of the CMC Hospital told the complainant that their Hospital is CMC not listed in the panel of the hospitals. On the same date i.e. 8.2.13, the complainant had a talk with the Manager Bikkar Singh OP2 on telephone at 10.52am on this account and lodged/register the claim. At that time complainant spent Rs.37,194/-. The complainant was discharged on 11.02.13 and thereafter again admitted in CMC Hospital on 23.02.13 to 25.2.13 as an indoor patient, where the complainant angiography was performed and complainant spent Rs.14,512/- and advised immediate operation and was transferred in Emergency, where open heat surgery took place. The complainant paid a total sum of Rs.2.00 lacs to CMC Hospital and also incurred another sum of Rs.20,000/- on medical expenses. The complainant lodged a claim of Rs.2,60,000/- with the OPs in March, 2013 and also submitted all the relevant papers with the OPs for payment of the amount spent on his treatment. The claim of the complainant was repudiated on the ground that it has been observed that the patient had hypertension for the last 5 years. It is worth mentioning here that policy was obtained and renewed after medical examination by a board of doctors of the OPs. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 and OP2 appeared through their counsel and filed written statement taking preliminary objections that the complaint is not maintainable in the present form; the complaint is false and frivolous one and is liable to be dismissed with exemplary costs; the complaint is bad for non joinder and misjoinder of necessary parties; the complainant has not come to this Forum with clean hands and has suppressed the material facts; the intricate question of law and fact are involved in this case and this case cannot be summarily decided by this Forum. On merits, denying the contents of all other paras of complaint submitted that such type of cases are being dealt with by Park Medicalim TPA Ltd. The papers regarding treatment of the complainant was sent to Park Mediclaim TPA Ltd. and Park Mediclaim TPA OP3 dealt with the claim of the complainant and OP3 issued notice dated 4.4.13 calling upon the complainant to supply certain documents and thereafter reminders dated 20.04.13 and 30.04.13 were duly sent to the complainant calling upon him to submit the record of treatment taken in past five years for hypertension after first deduction. The complainant could not supply the record of his treatment of past five years. However, TPA duly scrutinized the papers and processed the claim of the complainant and found that he was diagnoses hypertension, acute coronary syndrome and he underwent coronary angiograph with coronary artery bypass grafting. As per verification of in patient records it has been observed that patient had history of hypertension since five years. The claimant was having the insurance policy since 26.2.09 and mediclaim policy does not cover the expenses on the treatment of pre-existing disease and its complications as per exclusion clause 4.1 and the claim is not admissible. The TPA sent letter dated 15.5.13 after due scrutiny to OP1 and OP2 that claim is not payable. The OP1 and OP2 on receipt of the papers from TPA OP3 also scrutinized the claim of the complainant and found that complainant was admitted in CMC Hospital on two different occasions from 8.2.13 to 11.2.13 and 23.2.13 to 25.2.13 with diagnosis hypertension, acute coronary syndrome and he underwent coronary angiograph with coronary artery bypass grafting. As per verification of in patient records, it has been observed that patient had history of hypertension since five years. Individual mediclaim policy started from 26.2.09 only and individual mediclaim policy does not cover the expenses on treatment of pre-existing disease and its complications and claim is falling under exclusion clause 4.1 of the policy and claim of the complainant was repudiated by competent authority of the OPs and repudiation letter dated 2.8.13 through registered post was duly sent to the complainant repudiating his claim. There is no deficiency on the part of the OPs and due services were rendered by the OPs in settling the claim after taking into consideration the terms and conditions of the insurance company and guidelines laid down by the Head office of OP1 and OP2 and claim was rightly repudiated by the Ops and complainant is not entitled to any compensation from the OPs.

4.                Notice of the complaint was sent to OP4, which was served. But despite service of the notice, none came present on behalf of the OP4. As such, OP4 was proceeded exparte, vide order dated 20.03.2014. Notice of the complaint was sent to OP3, OP5 and OP6, through registered post on 26.3.14. But no report was received. As such, after expiry of 30 days waiting period, OP3, OP5 and OP6 were also proceeded exparte, vide order dated 06.05.2014.

5.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Ex.CA, wherein, the same facts have been reiterated, as narrated in the complaint and affidavit of complainant Ex.CX as additional evidence. Ld. counsel for complainant also submitted the documents Ex.P1 to Ex.P44. On the other hand, Ld. counsel for OPs has adduced the evidence by way of duly sworn affidavit of Sh.Kamaljit Singh, Deputy Manager, National Insurance Co. Ltd. D.O4, Kesar Ganj Chowk, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and affidavit of Dr.A.K.Batra, Medical Director of Park Mediclaim TPA Pvt. Ltd. 702 Vikrant Tower, Rajendra Palace, New Delhi Ex.RB and affidavit of Dr.B.C.Singla, Ex-PCMS, Medical Officer, 392, Baba Balak Nath Mandir Road, Ghumar Mandi, Ludhiana as additional evidence. Ld. counsel for OPs also submitted the documents Ex.R1 to Ex.R18.

6.                It is pertinent to mention here that when the case was fixed for arguments. Ld. counsel for complainant had moved the application for correction of the number of documents mentioned in the affidavit of complainant. The said application was allowed. Thereafter, complainant filed his fresh affidavit Ex.CX in evidence alongwith documents Ex.P1 to Ex.P44 after correcting the number of documents. Thereafter, Ld. counsel for OPs had also filed the affidavit of Dr.B.C.Singla, Ex.PCMS, Medical Officer Ex.RC alongwith document Ex.R18.

7.                Ld. counsel for complainant argued orally that complainant has been availing the Family Medicare Insurance Policies from the OP1 and OP2 since the year 2009 continuously without any break and thus he has bonafide consumer and the Ops assured that it is a cashless policy and he shall have not to pay the hospital bill. OP3 to OP6 also issued a card for this purpose. On 08.02.13 the complainant suffered chest pain and got treatment from CMC Hospital, Ludhiana and same was reported to the Ops for cashless treatment. The complainant also talked to the Manager Bikkar Singh of OP2 on telephone in this regard. The complainant was discharged on 11.02.13 and incurred the expenses for the treatment and thereafter lodged the claim of Rs.2,60,000/- in March, 2013, but the same was repudiated on the ground of pre-existing disease while the complainant has not have such type of symptoms and he was got medically examined by the Board of Doctors of the OPs at the time of availing the policies. Moreover, the OPs did not bring to the notice of the complainant about the exclusion clause and terms and conditions nor it is proved on file. As such, these terms and conditions cannot be imposed and exclusion clause is not binding upon the complainant. Ld. counsel for complainant also relied upon the judgements passed in cases titled as National Insurance Co. Ltd. Vs Ashok Kumar Sabharwal and another-2009(4) CLT 204 (Punjab State Commission), Oriental Insurance Co. Ltd. and another Vs Mohinder Singh (Dr.)-2009 (1) CLT 494 (Delhi State Commission), The Oriental Insurance Company Limited Vs Vivek Rekhan-2014 (3) CLT 202 (Haryana State Commission).

8.                Refuting the allegations leveled by the complainant, Ld. counsel for OPs argued that policies availed by the complainant are not in continuation and there is break for some periods and complainant had already been suffering from Hypertension, acute coronary syndrome and he underwent coronary angiograph with coronary artery bypass grafting. As such, the mediclaim policy does not cover the expenses on the treatment of pre-existing disease and as per exclusion clause 4.1, the claim is not admissible and repudiation of the claim by OP3 to OP6 is logically based.

9.                We have gone through the pleadings of the complainant as well as defence taken by the OPs and have also perused the entire record placed on file.

10.              It is evident that the complainant alongwith his wife and daughters got Family Medi-care Insurance policy no.4044502/48/12/8500001311 valid from 28.2.13 to 27.2.14, which was in continuation of the previous policies and the complainant has been obtaining the policies since 26.02.09, which he got renewed without any break, as such the complaint is maintainable. The complainant was medically examined from the doctors on their panel and the Ops assured the complainant that it is a cashless policy and complainant shall not have to pay any hospital bill. The OP3 to OP6 also issued the card in this regard.

11.              During the course of arguments, Ld. counsel for complainant has placed on record judgement of Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in case titled as National Insurance Co. Ltd. Vs Ashok Kumar Sabharwal and another whereby it is held as under:-

“Insurance claim. Medi Claim policy. Repudiation of claim. Suppression of pre-existing disease. There is not material produced by the appellant to show that respondent no.1 had any pre-existing disease prior to taking of the policy. Do not any infirmity in the order of the District Forum in allowing the complainant. Rate of interst of 12% p.a. held to be on the higher side and reduced to 7.5% p.a.”  Further held that Ld. counsel for appellant argued that respondent no.1 had not mentioned true facts, regarding his health in the proposal form and concealed his health status. It was further argued that as per opinion of the Doctor it was proved that respondent no.1 had a pre-existing disease so his claim was rightly repudiated. On the other hand, learned counsel for respondent no.1 argued that the appellant had failed to prove the fact that respondent no.1 had a pre-existing disease as the appellant had not placed on record any document/evidence which shows that respondent no.1 had taken any treatment of his disease prior to taking the mediclaim policy. The only dispute between the parties is that whether respondent no.1 had suppressed the information about his health from the appellant at the time of taking the policy in question or not?. The basis of rejection of the claim by the appellant is on the opinion of mediclaim team, which is their opinion in para (c) and (d) has opined that respondent no.1 was suffering from diabetes and HTN and was of positive family history of CAD which was the evidence of pre-existing but in our observation this opinion has no force as this opinion was not based on any document. It is proved case that Hero Hospital’s doctor had disclosed this fact that respondent no.1 had developed this problem 3-4 months prior to admission before him. Respondent no.1 had taken this medi claim policy on 31.03.2003 and he was admitted in Hero Hospital on 23.12.2003, which proved that this problem was occurred much later after obtaining the policy. The same problem was mentioned in history of Escorts Heart Institute & Research Centre, New Delhi. Even no affidavit of any doctor of medical team is exhibited by the appellant in support of its version. No name of any doctor is mentioned in the affidavit of Dr.Hatim Companiwala. Sr. Manager of the appellant. In our opinion, it is not possible that the person will take the risk of his life for getting the claim from the insurance company. If the interpretation of the appellant company is upheld then the Company will not be liable to pay any claim whatsoever because every person suffers from symptoms of disease without the knowledge of the same.  Most of the people are totally unaware of the symptoms of the disease that they had suffered and hence, they cannot be made liable to suffer as such no claim is payable under the policies of insurance company as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to be insured for which he is genuinely unaware of them.  

            Ld. counsel for complainant further relied upon the judgement passed in case titled as The Oriental Insurance Company Limited and another Vs Mohinder Singh (Dr.), whereby held that Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of ‘pre-existing disease’ for repudiation of the insurance claim unless as insured in the near proximity of taking of the policy is hospitalized or operated upon the treatment of these diseases or any other disease.

12.              During the course of arguments, Ld. counsel for OPs in any manner have been able to prove on record that the exclusion clause or the terms and conditions of the policy were ever supplied or brought to the notice of complainant at the time of taking the policy and Ld. counsel for the OPs also failed to prove on record that the said terms and conditions were ever brought to the notice of the complainant either orally or in writing nor there are counter arguments to the above averments of the complainant and the citations quoted above are very much relevant in the present case.

13.              Sequel to the above discussion, the present complaint is allowed and Ops are directed to settle and pay the claim of the complainant as per the terms and conditions of the policy. Further Ops are directed to pay Rs.5000/- (Five thousand only) as compensation and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                   (S.P.Garg)                                         (R.L.Ahuja)

                     Member                                             President

Announced in Open Forum.

Dated:20.01.2015 

Hardeep Singh