BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.387 of 2016

Date of Instt. 07.09.2016

Date of Decision: 08.05.2018

1. Mrs. Seema Pasricha aged 48 years wife of late Shri Sawtantar Kumar Pasricha, erstwhile resident of 29 Adarsh Nagar, Jalandhar Now R/o 29-A Block, Silver Heights Apartments, Jalandhar City-144001.

2. Shubhankar Pasricha son of late Sh. Sawtantar Kumar Pasricha, erstwhile resident of 29-Adarsh Nagar, Jalandhar now R/o29-A Block Silver Heights Apartments, Jalandhar City-144001.

..........Complainants

Versus

1. National Insurance Co. Ltd., Divisional Office 1 BMC Chowk, Jalandhar-144001 through its Senior Divisional.

2. Raksha India TPA Pvt. Ltd., SCO 359-360, First Floor, Sector 44-D, Chandigarh 160047, through its Authorized Officer.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. KC Malhotra, Adv Counsel for the Complainant.

Sh. RS Arora, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is filed by the complainants, wherein alleged that Sawtantar Kumar (since deceased), husband of the complainant No.1 and father of the complainant No.2, while alive allured by tempting and lucrative benefits on inducement obtained Mediclaim Insurance Policy from OP No.1 through its authorized agent from 2003 onwards covering risk on the life of Sawtantar Kumar principle insured and his wife and his son co-insured without any gap/break. The cover note policy schedule of policy No.401100/48/14/8500000523 dated 15.10.2014 by renewal in the name of Sawtantar Kumar decased was issued. The policy effective from 17.10.2014 to 16.10.2015 covered the risk of Health Insurance on the life of Sawtantar Kumar, principle insured and the complainants above. The total renewal premium in the sum of Rs.27,012/- was paid as consideration in respect of risk coverage as stated above. The renewal of the policy was accepted after fully satisfying, continued insurability without questioning the credential of the insured persons without any demur and rancor. The OP No.1 delivered to the principle insured cover note and policy schedule of Mediclaim Insurance Policy only from the inception of the risk coverage and on its renewal. The policy document was not issued to the insured persons by OP No.1 during the whole of the period of the policy. It is pertinent to mention here that it was mandatory and obligatory upon OP No.1 to have issued policy document, which expresses the contract between the insurer i.e. OP No.1 and the insured. There is/was no ground or reason for not issuing policy bond. Normally cover note/policy schedule is only interregnum during which policy is prepared and issued. The terms and conditions including exclusion clauses were not ever communicated and explained nor made known to the insured and as such, were not part of insurance.

2. That the OP No.1 has agree and undertaken to indemnify reasonable and necessary expenses of domiciliary hospitalization only for illness/disease, contracted or injury sustained by the insured persons during the period of insurance to the full extent without any deduction in any manner. Accordingly, the insured persons have the right of indemnification for whole amount of medical and surgical expenses incurred and for any loss or damage of peril covered during the term of mediclaim insurance policy.

3. That to misfortune and ill luck of the complainants, principle insured Sawtantar Kumar had problem in his food pipe and first time was consulted Tagore Hospital Pvt. Ltd. Jalandhar on 31.05.2014. On physical and clinical examination and tests performed, it was diagnosed Migrant Cancer of Food Pipe in Layman language and technically in medical term-Malignant Neoplasm of Oesophagus. He was referred for further management, evaluation, and treatment in specialized cancer hospital and for further expert advise relating to disease diagnosed. The principle insured was taken to Vedanta Super Specialty Hospital Gurgaon (Haryana). After clinical examination and required mandatory tests were conducted, it was confirmed the diameter of Malignant Neoplasm of Oesophagus Cancer. It was advised that four (Two + Two) Chemotherapy 100 hours each. Thereafter, he underwent Surgical Operation W after first two initial Chemo Therapies. The principle insured preferred mediclaim in respect of the mediclaim insurance policy for an amount of Rs.10,39,178/- to OP No.1, which forwarded the claim for processing to the then T.P.A namely Vipul Midcrop Private Limited. However, the claim amount was reduced by the OP No.1 at the behest of the then TPA and was settled and paid in the sum of Rs.6,52,029/-. The details of the deduction so made arbitrarily and malafide had not been given and the complainants due to prolonged critical illness of the principle insured could not follow up the matter for claim amount paid short and less.

4. That the treatment continued because of suffering from dreaded disease stated supra and the principle insured struggling for life and death unfortunately could not survive and ultimately expired on 60.09.2015.

5. That due to unfortunate and premature death of principle insured, the whole of the bereaved family and particularly the complainants were under grief, sorrow and shock could not prefer mediclaim with OPs. The complainants were completely disturbed under strain and stress, shock and turmoil due to the untimely death of sole bread earner having no means of livelihood since the expenses for treatment borne by them were very heavy leaving the family orphan with help and financial assistance of near and dear and close relations, the complainants had incurred medical expenses for treatment and paid to the hospital till death were around Rs.4,11,000/- approximately. In the above process, the bills and payments made to the hospital were misplaced and further due to the ultimately death and prolonged continue treatment, the payments made to the hospital could not be traced out. After coming out of shock and grief, the complainant after protracted efforts could traced out misplaced payments bills and mediclaim paid by them and preferred claim with OPs for reimbursement explaining the reason for delay due to extra ordinary extenuating circumstances beyond the control of the complainants and requested for reimbursement condoning the alleged delay in submission of the claim. The claim was lodged in the sum of Rs.4,11,000/- approximately and the complainants had complied with all the requisite formalities and requirements, whatsoever were asked and to condon the delay as stated above. Due to an oversight, the complainants could not make the claim for exact and correct amount for reimbursement owing to missing of relevant documents relating to mediclaim and lesser amount was claimed. Later on, coming to know bonafide error in the amount so claimed, the complainants requested for including the amount left mistakenly of Rs.60,000/-. These were duly supported by the bills and payments made for hospitalization and treatment and medicine. In nut shell, total amount correct of Rs.5,22,845.20 was due and recoverable from the OPs.

6. That to utter surprise and the claim of the complainant was rejected on 01.08.2016 on the purported ground that there is a clear cut violation of terms and conditions of the policy, vide condition No.5.3 (relates to the intimation of the claim) and condition No.10 relates to submission of claim papers on the pretext that the competent authority is not satisfied with clarification of Email dated 31.03.2016. The claim of the complainant has been repudiated and same was closed as no claim. The OP No.1 on ill-advised and at behest of OP No.2 has wrongly perversely, unilaterally rejected rightful and genuine, legitimate mediclaim in oppressive manner. No reason, whatsoever, has been given for alleged non-satisfaction of competent authority nor designation of the competent authority has been disclosed. Even the designation of signatory of letter dated 01.08.2016 and its competency has been divulged. It is, thus, not clear regarding the competent authority, which allegedly considered the circumstances of delay for condoning the delay. Apparently, callous and inhuman approach has been made. And the insurance Regulatory and Development Authority mandatory and binding circular dated 20.09.2011 issued to All Life Insurer and Non-Life Insurer has been completely ignored and overlooked though the said IRDAI Insurance Regulatory Circular had categorically and explicitly laid down that the condition as invoked erroneously should not prevent settlement or genuine claim, particularly, when there is a delay in intimation or in submission of documents due to unavoidable circumstances. The claim of the complainant falls within the purview of the binding instructions of IRDAI and the reasons for rejection of the claim was not based on sound logic and valid ground. The rejection of the claim and refusal to condon the delay was on purely technical ground in a mechanical fashion, which resulted in miscarriage of justice and irreparable financial loss to the complainants, which is clear cut deficiency in service on the part of the OPs and accordingly, this complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to reimburse mediclaim amount of Rs.5,22,845.20 alongwith interest @ 12% per annum from the date of lodgment of the claim upto the date of actual payment and further OPs be directed to pay compensation of Rs.50,000/- and litigation expenses of Rs.25,000/-.

7. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed a joint reply, whereby contested the complaint by taking preliminary objections that the insured did not remain bound by the terms and conditions of the insurance, then equally the insurer was also not bound by it and could repudiate the claim. It is further averred that the complaint is based on total misconception that she could violate the terms and conditions of the insurance policy with impunity and yet succeed. The breach by the complainants of the paramount condition No.5.3 (Relating to intimation of Claim within 7 days and filing of claim within 30 days from the date of discharge) rightly invited repudiation of the claim at the hands of the OP, when the complainants took for submission of the papers and periods lying from 100 days to 2 years. It is further alleged that it is not the case of the complainants that the complainants did not know the value and importance of the expeditious intimation and submission of papers because by their own admission in Para No.8 of the complaint, another claim for Rs.6,52,029/- was received by the complainants under the term of the present insurance. It is further alleged that the plea of the complainants that they were under shock hence could not perform the necessary acts and deeds in the direction of making the claim, it is totally falsified from the fact that dozens of letters were written to the complainants and each letter could be the wake-up call to the claimants, but having slept over one and the others. It is further submitted that the complainant has wrongly come to advert to condonation of delay in intimation of insurance claim to condonation of delay in appeals. On merits, the factum in regard to purchase insurance policy by the husband of the complainant No.1 and father of the complainant No.2 is admitted and further alleged that the complainant has already obtained a claim of Rs.6,52,029/- as per para No.8 of the complaint and renewal of the insurance policy, is also admitted being a matter of record. The other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

8. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Mark C-1 and Mark C-2 and then tendered into evidence additional affidavits Ex.CB and Ex.CC and some documents Mark C-3 to Mark C-20 and closed the evidence.

9. Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP/A and supplementary affidavit Ex.OP/B and some documents Ex.O-1 and Ex.O-2 and closed the evidence.

10. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

11. After hearing the arguments and from the scrutiny of the case file, it reveals that the factum in regard to get an insurance policy for the period 17.10.2014 to 16.10.2015 by the husband of the complainant No.1 and father of the complainant No.2, in his own name as well as in the names of both complainants, after making a payment of premium of Rs.27,012/-. In order to establish the insurance policy was obtained by the complainants, copy of the same is available on the file Mark C-20. The factum in regard to purchase of insurance policy and submission of insurance claim by the complainant is not denied by the OPs rather the OP took a plea that the intimation in regard to death of insured Sawtantar Kumar Pasricha was given by the OP after long delay, which is clear cut violation of the terms and conditions as envisaged in the terms and conditions No.5.3 and condition No.10 and whenever any insurance claim is intimated after long delay, then the same is not payable under the aforesaid conditions though, the counsel for the complainant alleged that the terms and conditions were never supplied to the insured, if so then, where from the complainants themselves brought on the file copy of term and condition, which is enclosed along with the insurance policy, where from we can construe that the policy along with the terms and conditions was virtually received by the complainant and complainants as well as deceased insured Sawtantar Kumar Pasricha was well aware about the terms and conditions, but for the best known reason, the complainants themselves failed to give intimation immediately after the death of insured Sawtantar Kumar Pasricha, which is exactly violation of the condition 5.3 of the terms and conditions of policy, no doubt, in order to meet out the said terms and conditions 5.3, produced on the file copy of circular issued in the year 2011 by the IRDA and as per that circular, the insurance company is required to consider the delay if the same is satisfactorily explained, but in this case, the complainant has not satisfactorily explained the long delay of six months and simply taking a plea that the complainants remained under strain and stress and they were completely disturbed due to untimely death of sole bread earner of the complainant. We find that this explanation for delay is not acceptable because one can remain under stress and strain upto one month and thereafter, he started doing his routine work, but in this case, the death of the deceased Sawtantar Kumar Pasricha was happened on 06.09.2015, whereas the insurance claim was submitted on 31.03.2016 as per document Ex.O-1. So, it means there is approximately six months un-explained delay, which is not properly explained by the complainant and therefore, case of the complainant is not covered under the circular of IRDA Mark C-3.

12. Further, we have also gone through the judgments referred by learned counsel for the complainant, cited in 2016(3) CLT 299 (National Commission), titled as “National Bulk Handling Corporation Ltd. Vs. Oriental Insurance Co. Ltd.”, 2014 (2) CLT 386 (Haryana State Commission), titled as “The Manager, New India Assurance Co. Ltd. Vs. Yadram” and 2005(2) CLT 219 (National Commission), titled as “New India Assurance Co. Ltd. Vs. K. A. Abdul Hameed and Others”. After considering the aforesaid judgments, we find that the aforesaid judgments are not applicable in the case of the complainant, being reason the delay for intimation of death of the insured is about six months in this case, which is not properly explained, whereas the facts of the aforesaid judgments are not identical to the facts of the case in hand and as such, we are of the considered opinion that the claim of the complainant was rightly rejected by the OP on the ground that there is a clear cut violation of terms and conditions of the policy, vide Condition No.5.3 and Condition No.10 and accordingly, the complaint of the complainant being without merits and thus, the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

08.05.2018 Member President