Complaint No: 137 of 2020.
Date of Institution: 20.11.2020.
Date of order: 31.10.2023.
1. Parmjit Chandey aged about 60 years S/o Sh. Tara Chand Chandey
2. Meena Chandey aged about 60 years W/o Parmjit Chandey S/o Sh.Tara Chand Chandey
both residents of House No.450, South City Phase-1, Batala, District Gurdaspur. Pin Code – 143505.
…........Complainant.
VERSUS
National Insurance Company Ltd., SCO 168 - 169, Jalandhar Road, Batala, through its Branch Manager. Pin Code – 143505
….Opposite party.
Complaint U/s 35 of the Consumer Protection Act, 1986.
Present: For the Complainants: Sh.Rajiv Kaura, Advocate.
For the Opposite Party: Ajay Dadhwal & Sh.Sumit Pathania, Advocates.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Paramjit Chandey & Meena Chandey, Complainants (here-in-after referred to as complainants) has filed this complaint under section 35 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against National Insurance Co. Ltd. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainants is that the complainant No.1 obtained the Health Policy No.401211501910000168 from the opposite party for the period w.e.f. 03.08.2019 till 02.08.2020. It is further pleaded that the above said Health Insurance also cover his spouse i.e. complainant No. 2 and thus both the complainants are covered within the definition of Consumer Protection Act, 1986. It is further pleaded that the complainants have/had been obtaining the Health Insurance Policies from the opposite party regularly since 2005 i.e. for the last more than 15 years and have/had been paying the premium as desired and required by the opposite party. It is further pleaded that during the effective and operative period of Health Insurance Policy / Mediclaim policy the complainant No.2 fell ill and was under the treatment of qualified doctors of Parvati Hospital Ranjit Avenue Amritsar and Dayanand Medical Hospital Ludhiana where it was diagnosed that the complainant No. 2 was suffering from disease of Liver. It is further pleaded that thereafter the complainant went to the institute of Liver and Biliary Sciences (hereinafter referred as ilbs which is the Govt. Hospital). It is further pleaded that on 18.01.2020 after the inspection it was diagnosed as under:-
"On Inspection: distended abdomen, umbilicus central and inverted, skin over the abdomen is stretched with no visible venous prominences, no visible pulsations. On Palpation: soft, non-tender, liver non-palpable 1 cm below right coastal margin. Spleen non-palpable 2 cm below left coastal margin. No guarding, no rigidity, no rebound tenderness. On Auscultation normal bowel sounds present". It is further pleaded that thereafter on 21.01.2020 the complainant No. 2 was admitted in ilbs where the surgery was done/conducted by Dr. S.K. Sarin. It is further pleaded that complainant No.2 was admitted in the hospital on 21.01.2020 at 10.28 A.M and after surgery the complainant No.2 was kept as Day Care Patient directly under the direct supervision of qualified Medical officers of the hospital named ilbs. It is further pleaded that the patient who has undergone the major surgery is kept as a day care patient there as a precautionary measure so that the health of the patient is regularly monitored by the doctors of the hospital for the good health of patient and in case of any adverse health condition of the patient after surgery, the medical staff may/might rush to the day care patient and to take care of the patient. It is further pleaded that in this case before the surgery many fold medical tests on the person of the complainant No.2 were conducted to assure the fitness of the person of the complainant No.2 to respond to the surgery and the said tests took the considerable period which is in hours. It is further pleaded that after the medical tests on the person of the body of the complainant No.2 she was given anesthesia and after the effect of anesthesia which also took considerable time the surgery of liver of complainant No.2 was initiated/started by the Doctor S.K. Sarin and his team of doctors and medical staff. It is further pleaded that after the medical tests the complainant No.2 was shifted to the operation theater which also took considerable time where she was given anesthesia. It is further pleaded that operation of the liver of complainant No.2 took more than 3 hours and after the operation she was shifted to day care center of the room of the hospital. It is further pleaded that when the complainant No.2 regained her senses and the effect of anesthesia was minimized the formalities to shift the patient i.e. complainant No.2 were completed and for the completion of the formalities to shift the complainant No.2 in the room of the hospital took much time. It is further pleaded that complainant No.2 was shifted from the day care center/room at 09.28.01 P.M on 21.01.2020 and she reached in the room at 09.32 P.M on 21.01.2020 which is continuity of the treatment right from 10.28 A.M on 21.01.2020 till 05.09 P.M on 22.01.2020. It is further pleaded that in this manner the complainant No.2 remained hospitalized at ilbs with effect from 10.28 A.M on 21.01.2020 till 05.09 P.M on 22.01.2020 which is more than 30 hours 41 minutes which is more than 24 hours of admission in the hospital for the liver surgery on the person of the complainant No.2. It is further pleaded that no amount has been claimed till date by the complainants for the treatment at Parvati Hospital and DMC Hospital Ludhiana which shows the bonafide on the part of the complainants despite the cashless facility as per the terms and condition of the policy No. 401211501910000168. It is further pleaded that as the hospital i.e. ilbs is not under/in the list of the opposite party and the complainants have to pay the amount of Rs.75,153/- to the hospital with the assurance of the agent/authorized officer of the opposite party on telephone that the Mediclaim would be reimbursed to the complainants by the opposite party on submission of the bills. It is further pleaded that the complainants submitted the medical bill with the treatment record on the person of the complainant No.2 undergone at ibls and at the first instance the opposite party while admitting the claim of the complainants for the amount of Rs.75,153/- asked the complainant to provide the banking details for NEFT. It is further pleaded that to the utter surprise of the complainants the opposite party later on has repudiated the just and legal Mediclaim of the complainants illegally, unlawfully vide repudiation letter dated 05.08.2020. It is further pleaded that the repudiation of the health claim of the complainants vide repudiation letter dated 05.08.2020 of claim amount is illegal, unlawful, in effective, inoperative, in utter disregard and violation of principles of natural justice, equity and fair play, precedence and law, null and void and is not sustainable in any circumstance what so ever as no one from opposite party ever contacted complainants or the doctors of the above mentioned hospital which itself proves that the repudiation of the claim of the complainants has been made in a mechanical and strait jacket formula without any effort to find the truth. It is further pleaded that due to this illegal act and conduct of the opposite party the complainants has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainants has alleged deficiency and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to make the payments to the complainants i.e. Rs.75,153/- with interest thereon at the rate 18% P.A. w.e.f. 22.01.2020 till the actual date of payment and Rs.1,00,000/- as compensation for harassment and mental agony caused to the complainants by the opposite party. The opposite party also burdened with Rs.22,000/- as litigation expenses, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply stating therein that the patient was admitted in hospital on 21.01.2020 at 9.32 P.M and discharged on 22.01.2020 at 5.09 P.M, as hospitalization was not completed for 24 hours. It is pleaded that as per discharge summary conservative treatment was done for NAFLD with co morbidity obesity, hence the claim was repudiated under clause 3.12 Hospitalization and 4.9 Obesity.
On merits, the opposite party denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainants has tendered into evidence affidavit of Paramjit Chandey, (Complainant No. 1) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-13.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Sunil Tuli, (Divisional Manager, National Insurance Co. Ltd., Pathankot) as Ex.OPW-1/A alongwith other document as Ex.OP-1.
6. Rejoinder filed by the complainant.
7. Written arguments filed by both the parties.
8. Ld counsel for the complainants has argued that the complainant No.1 obtained the Health Policy from the opposite party for the period w.e.f. 03.08.2019 till 02.08.2020 and has been obtaining the Health Insurance Policies from the opposite party regularly since 2005 i.e. for the last more than 15 years. It is further argued that during the effective and operative period of Health Insurance Policy / Mediclaim policy the complainant No. 2 fell ill and was under the treatment of qualified doctors of Parvati Hospital Ranjit Avenue Amritsar and Dayanand Medical Hospital Ludhiana where it was diagnosed that the complainant No. 2 was suffering from disease of Liver. It is further argued that complainant No. 2 was shifted from the day care center/room at 09.28.01 P.M on 21.01.2020 and she reached in the room at 09.32 P.M on 21.01.2020 which is continuity of the treatment right from 10.28 A.M on 21.01.2020 till 05.09 P.M on 22.01.2020 and in this manner the complainant No.2 remained hospitalized at ilbs with effect from 10.28 A.M on 21.01.2020 till 05.09 P.M on 22.01.2020 which is more than 30 hours 41 minutes which is more than 24 hours of admission in the hospital for the liver surgery on the person of the complainant No. 2. It is further in arguments that opposite party repudiated the claim under some clause which was never supplied or explained to the complainants as such repudiation is unjustified and business mal practice.
9. On the other hand counsel for the opposite party Mr. Ajay Dadwal and Mr Summit Pathania have argued that complainant no.2 was admitted in hospital on 21.01.2020 at 9.32 P.M and discharged on 22.01.2020 at 5.09 P.M, as hospitalization was not completed for 24 hours and as per terms and conditions Ex OP 1 clause 3.12 the claim is not payable. It is pleaded that as per discharge summary conservative treatment was done for NAFLD with co morbidity obesity, hence the claim was repudiated under clause 3.12 Hospitalization and 4.9 Obesity. It is further argued that complaint is false and is liable to dismissed.
10. We have heard the counsel for the parties and gone through the record.
11. It is admitted fact that complainant No.1 obtained the Health Policy No. 401211501910000168 from the opposite party for the period w.e.f. 03.08.2019 till 02.08.2020 copy of which is Ex.C1. It is further admitted fact that the above said Health Insurance also cover his spouse i.e. complainant No. 2 and thus both the complainants are covered under the policy. It is further admitted fact that the complainants have been obtaining the Health Insurance Policies from the opposite party regularly since 2005 i.e. for the last more than 15 years and have/had been paying the premium as desired and required by the opposite party. It is further admitted fact that the complainant went to the institute of Liver and Biliary Sciences (hereinafter referred as ilbs which is the Govt. Hospital) and was diagnosed as "On Inspection: distended abdomen, umbilicus central and inverted, skin over the abdomen is stretched with no visible venous prominences, no visible pulsations. On Palpation: soft, non-tender, liver non-palpable 1 cm below right coastal margin. Spleen non-palpable 2 cm below left coastal margin. No guarding, no rigidity, no rebound tenderness. On Auscultation normal bowel sounds present". It is further admitted fact that thereafter on 21.01.2020 the complainant No.2 was admitted in ilbs where the surgery was done/conducted by Dr. S.K. Sarin. It is further admitted fact that complainant No.2 was admitted in the hospital on 21.01.2020 at 10.28 A.M and after surgery the complainant No. 2 was kept as Day Care Patient directly under the direct supervision of qualified Medical officers of the hospital named ilbs. It is further admitted fact that claim was repudiated by the opposite party on the ground that complainant no.2 was admitted in hospital on 21.01.2020 at 9.32 P.M and discharged on 22.01.2020 at 5.09 P.M, as hospitalization was not completed for 24 hours and as per terms and conditions Ex.OP-1 clause 3.12 the claim is not payable. We have gone through the terms and conditions Ex.OP-1 as per which claim has been denied. Perusal of the case file shows that it has not been proved or pleaded by the opposite party that said terms and conditions were ever supplied to the complainant with the policy and the said terms and conditions were explained to the complainant, and since there is no such evidence on record, we have no hesitation in holding that opposite party can not impose such terms and conditions with which the complainant was not made conversant. More over opposite party has also placed on record said conditions at last stage of the case through additional evidence meaning there by that the opposite party was also not possession of the same when written reply was filed and same has been procured later on and then placed on case file.
12. From the aforesaid discussion, it transpires that the genuine claim of the complainant has been repudiated by the opposite parties without any reasonable excuse. It is usual with the insurance companies to show green pastures to the consumers when they are to sell their policies. But however when it comes to the payment for claim, they invent all sort of excuses to deny the claim. Reliance in this connection can be had on the decision of Hon'ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of the particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This 'take it or leave it', attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.
13. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon'ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
"It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy, Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich".
From the above discussion we hold that repudiation of claim by opposite party by relying upon the terms and condition which were not supplied to the complainant amounts to deficiency in service on the part of opposite party.
14. Accordingly present compliant is partly allowed and opposite party is directed to pay amount of Rs.75,153/- alongwith interest @ 9 % P.A. from the date of filing of present compliant till realization of the amount. Opposite party is further directed to pay Rs.5,000/- to the complainants for mental tension, harassment, inconvenience and Rs.3000/- as cost of litigation. Entire exercise shall be completed within 30 days from the receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Oct. 31, 2023 Member.
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