Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-263/06.03.2019
(Old Case No. 51/2019)
Smt. Nischal Aggarwal w/o Late Sh. Kamal Aggarwal
H. No. D-2, Budh Nagar, Inder Puri, J.J. Colony
I.A.R.I., Delhi-110012 ...Complainant
Versus
National Insurance Company Limited
7E, 3rd Floor, Deendayal Upadhyay Bhawan
Swami Ram Tirth Nagar,
Jhandewalan Extension, Delhi-110055 ...Opposite Party
Order Reserved on: 27.02.2023
Date of Order: 18.05.2023
Coram: Shri InderJeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1. The present complaint has been filed by Smt. Nischal Aggarwal, wife of Late Shri Kamal Aggarwal (in short the ‘complainant’) against National Insurance Company Ltd (in short ‘OP’) u/s 12 of the Consumer Protection Act 1986.
1.2.Perusal of the record shows that initially CC. No. 51/2019 was filed against the OP which was dismissed in default by this Commission vide order/proceeding dated 22.04.2019 for non-appearance by the complainant, the said order dated 22.04.2019; vide which the initial complaint was dismissed in default was challenged before Hon’ble State Commission, Delhi by way of FA.No. 321/2019; Hon’ble State Commission vide its order dated 01.08.2019 accepted said appeal and set aside the impugned order of this Commission and restored the complaint to its original position; parties were directed to appear before the District Forum on 01.10.2019; it is in the aforesaid circumstances new CC.No. 263/2019 was assigned to this complaint.
1.3. The complainant’s husband had been taking National Parivar Mediclaim Policy from the OP company since 2016; the policy was last renewed w.e.f. 17.08.2017 to 16.08.2018 vide policy no. 350201501710002481 which covers the complainant; her husband; two dependent children for a sum insured of Rs. 5,00,000/-, the consideration amount of Rs. 11,971/- was paid to OP, (copy of policy is placed on page-6 of the paper book as Annexure C-1) the policy was in the name of Mr. Kamal Aggarwal (now deceased) husband of the complainant.
1.4. The husband of the complainant felt uneasiness; Pain Abdomen; Recurrent Vomiting and was taken to BLK Super Specialty Hospital on 26.08.2017; various tests were performed by the hospital and husband of the complainant was diagnosed Sepsis Septic Shock Severe Acute Pancreatitis etc.
1.5. Thereafter, husband of the complainant was admitted in BLK Super Specialty Hospital and Institute of Liver and Biliary Sciences; he remained in both hospitals w.e.f. 26.08.2017 to 24.09.2017 as is mentioned in the discharge summary of the hospitals; the complainant spent a total sum of Rs. 17,95,090/-; unfortunately, the husband of the complainant died on 24.09.2017 (copy of the discharge summery is at page-8 of the paper book as Annexure C-2).
1.6. It is also the case of the complainant that immediately the intimation about the admission of her husband was lodged with the TPA through hospital and OP was requested to register the claim and to apprise the hospital for settling the claim expenses; after the said intimation about the admission was given; TPA of OP sent a query letter dated 29.08.2017 to the hospital and required some documents which were sent to the TPA by the hospital (copy of the query letter dated 29.08.2017 is available on record at page-15 to 17 of the paper book as Annexure C-3).
1.7. It was informed by the hospital to the complainant that TPA of OP gave the cashless approval for Rs. 25,000/- on 30.08.2017; further cashless approval was given by TPA on various dates i.e. 31.08.2019, 03.09.2017 and 04.09.2017 and lastly cashless approval was given for Rs. 4,00,000/- on 07.09.2017 (copies of the same are placed on record at page- 18 to 22 of the paper book as Annexure C-4, 5,6 and 7).
1.8. Thereafter, TPA sent query letters dated 08.09.2017 and 09.09.2017 to the hospital requiring some documents and required papers were sent to the TPA by the hospital without delay (copy of query letters are placed at page-23-24 of the paper book as Annexure C-8 and C-9); it has been alleged by the complainant that OP and TPA did nothing to settle the claim of the complainant which were supposed to settle by them in advance directly with the hospital but they failed to do so despite submission of required documents.
1.9. To the utter surprise of the complainant; OP informed the hospital denying the cashless authorization to the effect that no amount is payable against the above claim as per terms and conditions of the policy on account of exclusion clause no. 4.21 (in fact, relevant clause is 4.11) and claim is not covered under the policy; and claim was repudiated; (copy of rejection letter is at page-25 of the paper book as Annexure C-10).
1.10. It is also the pleadings of the complainant that non settlement of the claim despite submissions of the required documents; is a clear case of deficiency of service as per Consumer Protection Act and the rejection of claim by the OP on flimsy ground under the shelter of terms and conditions of the policy which was not the part of contract issued to the complainant and the same was not supplied to the complainant; expenses of medical bills of both hospitals including test reports comes to Rs. 17,95,090/-.
1.11. In the aforesaid circumstances, the complainant has claimed a sum of Rs. 5,00,000/- as per National Pariwar Medi-claim Policy with interest @ 12% from the date of hospitalization of the husband of the complainant i.e. 26.08.2017 till the date of payment; the complainant has also claimed compensation of a sum of Rs. 2,00,000/- for sufferings, mental agony, pain on account of deficiency of service on the part of TPA/OP; apart from Rs. 1,00,000/- as cost of litigation.
2.1. OP has filed the reply under the signature of Shri Raghunath Pawar, Administrative Officer (Legal) in the company of OP;the said reply is under two heads (i) Preliminary objections and (ii) Reply on merits. In its written statement under the head preliminary objections; OP has pleaded that complaint is totally false and frivolous and has been filed with mala-fide intention being far from the truth and is entirely misconceived; non-maintainable; the complainant has not come to the Commission with clean hands and has made deliberate false averments; the present complaint is gross misuse of law and is not maintainable due to non-joinder of necessary parties as the complainant has not arrayed Safeway Insurance TPA Private Ltd. (hereinafter TPA) as party from whom the complainant made request for cashless claim under the policy and all the communications of the complainant is only with the TPA and not with the answering OP; complaint is also not maintainable as the services rendered by of OP does not suffer from any deficiency within the meaning of Section 2(1)(g) of the Consumer Protection Act 1986; OP has not repudiated the cashless authorization of the complainant; and rather stated that the claim should be put up for reimbursement; in the repudiation letter, TPA has mentioned that ‘on primary scrutiny of the submitted documents; we are unable to issue authorization/credit letter to the said hospital for reasons:
“Cashless denied due to discrepancy of query reply (regarding history of Alcohol intake) provided by hospital according to policy exclusion clause 4.21 kindly put the claim for reimbursement.”
It has also been alleged by the OP in its written statement that there is no cause of action in favour of complainant and against OP; the complaint has been filed in order to make wrongful gain to himself and wrongful loss to the OP; no information were provided to the OP about claim by the complainant.
2.2. In ‘reply on merits’ the National Parivar Mediclaim Policy from the OP is admitted for Rs. 5,00,000/-; having validity period w.e.f. 17.08.2017 to 16.08.2018, it has been denied by the OP that the coverage was not explained to the complainant nor any terms and conditions along with policy was given to the complainant; copy of the insurance policy has also been submitted on record as Annexure-1;it has also been denied that as per contract of insurance; OP is liable to pay to the complainant in settlement of her husband’s claim for Rs. 5,00,000/- as per documents submitted by the complainant; no approval of cashless has ever been given by TPA; Suffrage of mental agony, liability of litigation cost have also been denied by OP; concludingly enough; OP has pleaded for dismissal of the complaint filed on false and frivolous grounds.
3.1. The complainant in her rejoinder has repeated and reiterated the pleadings of the complaint and no new facts and features are incorporated therein.
3.2. Both the parties have tendered the affidavits of evidence. Smt. Nischal Aggarwal wife of Late Shri Kamal Aggarwal has filed the affidavit under her signature and contents of the affidavit are on the line of pleadings of the complaint; OP has also tendered the affidavit under the signature of Ms. Karishma Negi and contents of the same are also based on the stands taken in reply.
3.3. Both the parties have filed written arguments on their behalf which are on the line of pleadings in the complaint and the reply respectively.
3.4. Mr. Lokesh Kumar, Advocate addressed oral arguments on the part of complainant and no oral arguments was advanced on the part of OP despite opportunities given for the same.
Analysis:
4. We have perused the pleadings, affidavits, documents on record, written arguments and oral submissions of the parties (no oral submissions was made by OP); the deceased husband of the complainant took Pariwar Mediclaim Policy from OP w.e.f 2016 onwards; the policy was last renewed from 17.08.2017 to 16.08.2018 vide policy no. 350201501710002481 which covers the complainant, her husband and two dependent children for a sum of Rs. 5,00,000/-; consideration amount of Rs. 11,971/- was paid to OP; the husband of the complainant was admitted for abdomen pain and recurrent vomiting in BLK Super Specialty Hospital on 26.08.2017 and was discharged on 09.09.2017 ( page-8 of the paper book- Annexure C2); there has been a contract of insurance between the husband of the complainant and OP; all these facts are undisputed; perusal of the record shows that initially the husband of the complainant was admitted in the hospital on 26.08.2017 (03:09 am) and was discharged on 09.09.2017 (7:47 am) from BLK Super Specialty Hospital and subsequently again admitted on 09.09.2017 in Institute of Liver and Biliary Sciences, Vasant Kunj, New Delhi and died on 24.09.2017 in this hospital (page-10 of the paper book); these facts are also undisputed; it is also admitted fact between the parties that deceased husband of the complainant was diagnosed for Sepsis, Septic Shock; Severe Acute Pancreatitis, Acute Respiratory Distress Syndrome having a symptoms of severe pain abdomen and recurrent vomiting.
5. All these incidents happened during the validity of the policy i.e. 17.08.2017 to 16.08.2018; the complainant incurred expenses on the treatment of her deceased husband of total amount of Rs. 17,95,090/-; hospital bills of BLK Hospital for the treatment available at page no. 13- is for Rs. 8,14,110/- and another amount of Rs. 9,80,980/- was spent on treatment during the hospitalization in Institute of Liver and Biliary Sciences, Vasant Kunj, New Delhi (page-14 of paper book); the complainant is claiming the insured amount of Rs. 5,00,000/- as per the Parivar Mediclaim Policy to be paid by OP along with interest @ of 12% p.a. from the date of hospitalization of the complainant’s husband till the date of payment; in addition to Rs. 2,00,000/- for suffering of mental agony and pain; apart from Rs. 1,00,000/- as litigation cost.
6. Complainant submitted his claim to OP for payment but the TPA, working for OP/National Insurance Company rejected the claim of the complainant as stated in para no. 2 above.
7. Further, it is worthwhile to mention that all queries raised by the Safeway Insurance TPA Pvt. Ltd (TPA) vide letters dated 29.08.2017, and 30.08.2017 (page-17-18 of the paper book respectively); letter dated 31.08.2017 (page-19); letter dated 03.09.2017 (page-20), letter dated 04.09.2017 (page-21), letter dated 07.09.2017 (page-22), letter dated 08.09.2017 (page-23) and letter dated 09.09.2017 (page-24) were duly responded by the hospital authorities and all the documents required by TPA were also submitted by the hospital to the TPA; on the body of the letter dated 29.08.2017, the hospital authority also gave its remarks as ‘bank statement enclosed’, ‘documents mentioned therein enclosed’, Ediology Idiopathic and ‘no co-morbidity’; again on the body of letter dated 03.09.2017, there is remark of the hospital authority to the effect that ‘case summery for justification for hospitalization enclosed, complete IPD enclosed’ for reference, further on the body letter dated 04.09.2017; hospital has mentioned : (i) Case summery; (ii) running bill till date; (iii) Gipsa declaration enclosed, ‘please consider and provide approval for same’; we also find the remarks of the hospital authority on the body of the letter dated 08.09.2017 that ‘final bill and discharge enclosed’; on the body letter dated 09.09.2017, there is further remark from the hospital that ‘complete IPD till date enclosed’; these remarks and comments of the treating hospital are on the body of letters sent by TPA to the Medical Superintendent of the BLK Super Specialty Hospital.
8. The complainant has also submitted in para-11 of her written submissions that rejecting the claim by TPA based on the exclusion clause 4.21 (in fact clause 4.11) of the policy document is deficiency in service; exclusion clause referred by OP in para 5 of reply were never brought to the knowledge of general public nor the beneficiaries were made aware of these exclusions which are to put in a fine print and are kept only with the insurance companies to defraud the general public of their legitimate claims; more so; it is also the allegation of the complainant that OP neither explained anything about coverage nor gave any terms and conditions along with policy except one page document i.e. policy of insurance having details of the insured persons, sum insured, premium paid having the validity period w.e.f. 17.08.2017 to midnight of 16.08.2018 (page-6 of the paper book/Annexure C1)
9. Now, we would like to discuss the issue of OP/TPA in rejecting the claim of the complainant. The claim of the complainant was basically denied by OP/TPA based on exclusion clause 4.21. (to be read as clause 4.11) of the policy ‘regarding history of Alcohol intake; for this we have gone through details of the record. OP has pleaded that complaint is totally false and has been filed with mala-fide intension; and is not maintainable; complainant has not approached the Commission with clean hands and has made deliberate false averments; complaint is not maintainable due to non-joinder of necessary parties as the complainant has not impleaded Safeway Insurance Pvt. Ltd. (hereinafter TPA) as party from whom complainant made request for cashless authorization under the policy; all the communications of the complainant is only with the TPA and not with OP; there is no deficiency on the part of OP within the meaning of 2(1)(g) of the CP Act 1986, OP has not repudiated the cashless of the complainant; it was TPA who repudiated the claim.
10. The stand of OP that complaint is not maintainable due to non-joinder of necessary parties i.e. TPA; as all the communications were made to the TPA by the complainant and TPA repudiated the claim of the complainant; these pleadings/submissions of the OP have no merit as there exists valid insurance contract between the complainant and OP; if there is valid contract based on the considerations of the parties; the complainant is a consumer in accordance with CP Act 1986, the stand of OP that the complaint is not maintainable due to non-joinder of necessary parties i.e. Safeway Insurance TPA Pvt. Ltd; has also no merit as the TPA works for OP company; on behalf of the company and acts as a facilitator only; therefore; TPA, to our considered view is not necessary party; TPA is as a mediator between the complainant and OP and such communications by complainant made to TPA and also by hospital to TPA are meant that it was the communications/dealings for the OP to be acted upon further by OP, therefore, all these stands/pleadings of OP are of no consequence, hence rejected.
11. To add further, claim of the complainant has been rejected solely on the ground of exclusion clause of the policy as given in reply of OP as discussed in para-2; however, we do not find clause 4.21 in the terms and conditions of the Parivar Mediclaim Family Policy of the OP; this clause of the seems to have been mentioned inadvertently; though; relevant exclusion clause (4.11) under the head ‘drug/Alcohol abuse' runs as treatment arising out of illness/disease/injury due to misuse or abuse of drugs/alcohol or use of ‘intoxicating substances’ (the rejection of the claim seems to have been made under this clause and exclusion clause 4.21 seems as a typographical/inadvertent error.
12. One of the allegations taken by OP against complainant is that complainant has not come with clean hands and has made deliberate false and frivolous complaint which is gross misuse of law; this stand/pleadings of the OP carries weight as the complainant has nowhere disclosed about its Alcohol intake which is the ground of rejection of the claim by the TPA of the OP, in para-5 of the reply under the head ‘preliminary objections’ OP has clearly mentioned the exclusion clause regarding history of Alcohol intake; but rejoinder filed by the complainant is totally silent about this aspect and the same has neither being categorically admitted nor denied by the complainant in her rejoinder; if that is so, contention of the OP about concealment on the part of complainant and not approaching this Commission with clean hands stands substantiated which will be discussed further; the stand of OP regarding rejection based on the exclusion clause as mentioned above is also supported by the history of the complainant’s husband when he was admitted on 09.09.2017 in Institute of Liver and BiliarySciences and died in that Institute on 24.09.2017; in the death summery of the Institute of Liver and Biliary Sciences, Vasant Kunj, New Delhi, it is described under the head ‘History’ as under:
‘Mr. Kamal Aggarwal presented to the ILBS emergency on 09-09-2017 with index episode of pain abdomen 15 days prior. The pain was severe, central abdomen and radiating to back. He was hospitalized at local hospital and diagnosed to have acute severe necrotising pancreatitis-ethanol related managed conservatively; there is history of high grade fever with chills and rigors along with shortness of breath at the time of admission. There is history of abdominal distension and decreased oral intake; Not a/w Gi bleed/jaundice; No h/o chest pain/breathlessness; H/o of chronic alcoholism present; No co-morbidities; No previous surgery’(page 10 of the paper
book)’; Not only this, ‘cause of death’ in the Institute of Liver and Biliary Sciences is mentioned as under:-
- Immediate cause: Refractory septicshock with multiorgan failure
- Antecedent cause : Hemorrhagic Acute Severe Necrotizing Pancreatitis, Etiology ethanol, CTS-10
- Contributing cause : ARDS, Sepsis, AKI-III, chronicalcoholism (page-12 of the paper book)
In view of above, based on the discharge summary and cause of death issued by Institute of Liver and Biliary Sciences; it is crystal clear that patient/husband of the complainant was not merely chronic alcoholism but this has also been one of the contributory causes of his death and this aspect of chronic alcoholism was concealed by the complainant.
13. Apart, in the claim rejection letter; inter-alia, it is also mentioned that ‘kindly put up the claim for reimbursement; if that is so, we also do not find on record any submissions on the part of complainant that she approached with necessary documents to the OP for reimbursement of the claim before filing the complainant in this Commission, however, in proceeding dated 09.01.2020, Counsel for the complainant stated that OP has taken the plea in its W/S that claim has not being filed by the complainant with the OP; whereas TPA has rejected the claim of the complainant.
14. In view of the aforesaid discussions and deliberations, we are of the considered opinion that complainant has failed to establish his case as pleaded in the complaint, so, the complaint of the complainant fails;
15. We, hereby dismiss the complaint of the complainant with no cost.
16. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
17: Announced on this18th May, 2023.
[Vyas Muni Rai] [ Shahina] [InderJeet Singh]
Member Member (Female) President
