Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 5/03.01.2018
Parveen Kumar Jain
1960, Katra Shahanshai, Chandni Chowk,
Delhi -110006 …Complainant
Versus
OP. National Insurance Company Limited
third Floor, Deendayal Upadhyay Bhawan
7-E, Jhandewalan Extension, Swami Ram Tirath Nagar,
New Dehli-110055. ...Opposite Party
Date of filing: 03.01.2018
Coram: Date of Order: 08.08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.14)
- (Introduction to case of parties) – The complainant has grievances of deficiency of services that despite having valid medi-claim insurance policy from OP, the OP failed to reimburse medical expenses of treatment of his wife/insured and the OP repudiated the claim by invoking clause 3.25 (defining 'post hospitalisation') and exclusion clause 4.21 (drug/alcohol abuse and its treatment) despite it was not part and parcel of insurance policy issued and supplied to the complainant. The complainant had spent amount of Rs.1,80,894/-, which is more than sum insured and extent of cover, that why he is making claim of Rs.1.00,000 to the extent of sum insured and bonus of Rs. 40,000/- alongwith interest 18%, compensation of Rs.20,000/- and cost of litigation of Rs. 10,000/-
- The OP opposed the complaint for want of any deficiency of services as well as the insurance policy is a insurance contract, the parties are bound by the terms and conditions of the policy. The complainant's claim for post hospitalization is not covered under the policy in terms of clauses of 3.25 and 4.21 of the policy and that is why the claim was properly declined as no claim. The complainant is not maintainable.
2.1. (Case of complainant) - The complainant has been subscribing medi-claim/insurance policy for the last 13 years from OP for himself and his family members and he is also getting renewal of policy regularly. The present dispute pertains to renewed policy no. 350201/48/14/8500004456 issued in 2014 effective from 11.11.2014 to 10.11.2015, for sum insured of Rs. 2 lakh for the complainant and Rs. 1 lakh each for his wife and son (hereinafter referred as the "subject policy" or "insurance policy") with all existing benefits which the complainant was getting under the previous policies. Moreover, the cumulative bonus earned under the policy was Rs. 1 lakh for the complainant, Rs. 40,000/- for his wife and Rs. 35,000/- for his son.
2.2 On 11.04.2015 complainant’s wife/insured-patient Smt. Anjana Jain felt difficulty in swolling, she took medical advice and she was taken to AIIMS for medical checkup, where she was diagnosed of carcinoma of right lateral border of the tongue. She took the treatment in AIIMS, where she was hospitalized from 11.04.2015 to 26.04.2015 and again admitted on 07.11.2015 till 09.11.2015. The complainant spent total amount of Rs. 1,80,894/- on her treatment and medical expenses, for which claim was filed with medical papers, bills, cash memo, investigation report, other information and expenses voucher with the OP. However, there is limitation of sum insured and complainant is entitled for an amount of Rs. 1,40,000/-.
However, the OP informed by its rejection letter dated 19.05.2016 to the complainant that claim is not tenable under the definition of 3.25 (defining 'post hospitalisation') of terms and conditions of policy, the claim of complainant was already dismissed of hospitalization, there was no scope for 'post hospitalisation' claim. As per discharge summary, the patient-insured is chewer of 'pan and pan masala, the ailment is due to tobacco intake with positive history. The claim was repudiated as no claim (paragraph 9 of the complaint reproduces text of the letter).
2.3 The letter of OP was mischievous and it is not sustainable, the complainant’s wife has been covered under the mediclaim policy for the last 13 years but the terms and conditions being shown applicable by the OP were never in the policy document issued to the complainant. Moreover, the claim was rejected arbitrarily as chewing the pan masala is not prohibited under the policy, it is not an intoxicating substance and it does not contain tobacco. Tobacco is not an intoxicating substance. The rejection of claim is totally illegal and against the contract of insurance besides it is deficiency of services.
The insured filed the grievances to the office of Insurance Ombudsman by letter dated 06.05.2016, however, her complaint was dismissed on 01.08.2016 as per letter dated 02.08.2016 received by the insured. That is why the present complaint u/s 12 of Consumer Protection Act 1916.
2.4 The complaint is accompanied with copies of - insurance policy, medical papers, discharge summary, invoice/vouchers/bills, letter dated 14.08.2015 of repudiation of the claim/no claim, complaint to Office of Ombudsman, letter with decision dated 01.08.2016 of insurance ombudsman in respect claim/grievances qua repudiation of claim by OP by letter dated 04.05.2018 and other correspondence exchanged.
3.1 (Case of OP) - The OP opposes the complaint that nothing is liable to be paid by the OP, since there is no cause of action or any liability against the OP. The OP is not liable under the policy to make any payment because of terms and conditions of the policy. The claim was properly treated as 'no claim' case in terms of clause 3.25 of the policy. The complaint is barred by period of limitation of two years since the claim was repudiated on 04.08.2015 but the complaint was filed in January 2018 after expiry of limitation period.
3.2. The complainant concealed the material facts, the allegations in the complaint are baseless besides abuse of process of law. The complainant was issued subject policy, however, insured-insured Ms. Anjana Jain has claimed claim for post-hospitalization expenses related to case of carcinoma of right lateral border of the tongue, which makes out disease of post hospitalization, therefore, the claim falls under the definition/clause 3.25 of the policy. The claim was treated as 'no claim' vide repudiation letter dated 04.08.2015. The OP has no liability under the policy. (the paragraph 10 of the reply reproduced clause no. 3.25). The OP also repeats extracts from the contents of discharge summary which have already been referred in paragraph 1.2 above. As per exclusion clause 4.21 of medical policy, the OP is not liable for any payment under the policy when there is "drug/alcohol abuse treatment or use of intoxicating substance". There is triable issue to be decided by the civil court. The complaint is liable to be dismissed. The written statement is not supported with any document.
4. (Replication of complainant) –The complainant filed detailed rejoinder while denying all allegations of written statement but reaffirming the complaint as correct.
5.1. (Evidence)- In order to establish the complaint, the complainant led his evidence by filing affidavit coupled with the documentary record
5.2. On the other side OP led evidence by filing affidavit of Sh. Raghunath Panwar, authorized representative of OP, the affidavit is on the pattern of the written statement.
6. (Final hearing)- The complainant and the OP have filed their respective written arguments. The parties were also given opportunity to make oral submission, therefore, Amit Kumar, Advocate for complainant and Shri Pramod Kumar Singh, Advocate for OP presented their respective oral submissions. However, no oral submissions were made on behalf of OP despite opportunities.
7. (Findings)- The contentions of both the sides are considered, keeping in view the material on record, inclusive of documentary record of the parties, besides statutory provisions of law and case law.
There is no dispute of subject policy issued to the complainant, risk covered for the complainant, his wife and their two children, sum insured, cumulative bonus and tenure of policy. There is also no dispute of hospitlisation of complainant's wife, her treatment and medical expenses incurred but dispute in respect of admissibility of claim under the policy besides other legal issues. Thus all of them will be taken one by one by beginning from the point of jurisdiction of this Fora/Commission.
8.1 The OP's case is that feature of the case involves questions to be decided be decided by the civil court and it cannot be determined by this Consumer Fora. It is opposed by the complainant that he has furnished all the material documents besides narrating the facts and features of the case, there is nocomplicated question either of fact or of law, which may require decision by the civil court. This Consumer Fora is competent to determine the consumer disputes.
8.2 On plain reading of entire pleadings and evidence, the OP has not highlighted as to which or what material warrants decision to be by the civil court or any whisper of complicated question of law or fact or mixed question of law and fact. The documentary record is available and abundantly clear. The pleadings are in fact emerging from those facts in documents. The same can be determined in the summary way. Therefore, this Consumer Fora is competent to decide the issues.
9.1. The case of OP is that the claim was repudiated on 04.08.2015 but the complaint was brought in January 2018, it is barred by law of limitation of two years prescribed. The complaint is liable to be rejected out-rightly being barred by law.
But on the other side, the complainant has reservation firstly the limitation period was computed, bona-fide from the date of decision dated 01.08.2016 by Ld. Insurance Ombudsman and from that date the complaint filed in January 2018 is within period of two years. Secondly, the complainant had also filed separate application seeking condonation of delay in filing the complaint, which may be considered, in case is period is being computed from the repudiation letter dated 04.08.2015 and it construed beyond period, the delay may be condoned as complainant was prosecuting the proceedings before other Forum of Insurance Ombudsman provided by law.
9.2 The rival contentions are considered. The complaint was filed on 03.01.2018. The rejection letter is of 04.08.2015. On simple calculation it appears that from the date of rejection letter, the complaint was filed beyond period of two years, it ought to be on or before 03.08.2017 in terms of section 24A of the Act, 1986. However, the complainant has invoked jurisdiction of Ld. Insurance Ombudsman, since remedy is provided so. Had the complainant satisfied with the decision of Ombudsman or had the decision being in favour of complainant, the complainant would not think of another remedy provided under the law. Therefore, the proceedings were filed in the office of Ld. Ombudsman, vis-à-vis in between the complainant could not file the present complaint since another authority was hearing the matter. Therefore, the cause of action was subsisting till the decision given by Ld. Ombudsman on 01.08.2016. Therefore, by computing the period of two years from 01.08.2016 the complainant could file the complaint on or before 31.07.2018, therefore, the complaint filed on 03.01.2018 is within statutory period of two years. It is a valid and competent complaint filed within time. The Ld. Predecessors of this Commission by their Order dated 11.11.2022 ordered that the complainant's application seeking condonation of delay would be heard with the final order. Accordingly, this application stand disposed off.
10.1 There is also rival plea on the point of terms and conditions of the policy, the OP invokes clause no.3.25 and exclusion clause no.4.21 of the terms and conditions of policy but complainant denies those terms and conditions of the policy as well as its supply to him. The OP refers those terms and conditions and its exclusion clauses 4.2.1 to show that because of these terms and conditions, the claim was not admissible. The complainant is aware or deemed to the aware of those terms and conditions, he is bound by them and the same are applicable.
On the other side the complainant refers record of insurance policy, which was also supplied to him and it has been filed with the complaint. The insurance policy schedule issued to complainant and filed is in four pages. None of these referred terms and conditions are mentioned on the face of insurance policy schedule nor it bears the exclusion clause 4.2.1 or clause 3.25 nor any endorsement. Further, the terms and conditions were not provided separately to the complainant at any point of time of original policy issued or renewal of the policy, then how it could be made to bind on the complainant?. The OP was required to consider and allow the valid claim of the complainant.
10.2 The submissions of the parties are assessed, in view of the material on record. The contention of the parties recorded in sub- paragraph 10.1 above is in fact based on record. The OP has not filed the insurance policy nor its terms and conditions on record nor the same have been proved in respect of policy issued at inception or otherwise. In fact, policy schedule supplied to the complainant and proved by him, bears certificate a, which given an impression to the insured that such insurance policy schedule is complete document of insurance contract in itself. There is also no roof by OP that it had provided to the complainant separate terms and conditions at any point of time.
10.3 The insurance policy is an insurance contract, it is governed by Chapter-III (of Contingent Contracts). The parties are bound by those terms and conditions of contingent contract entered between the parties. The parties are supposed to be aware and made aware of those covenant to be followed by them. Unless they are aware of those covenants, the same cannot be complied by them. The insurance policy and its terms and conditions are prepared and issued by insurance company, the insurance company is duty bound to provide complete terms and conditions of the contract to the insured. It would not escape the insurance company just by saying that conditions were provided or the complainant is aware of them. Since, the OP has charged insurance premium and it also issued policy schedule, it was required to provide physical terms and conditions of policy with policy schedule. What prevents the OP/Insured from supplying physical terms and conditions with policy? It is also not reasonable and justifiable that insurance contact is being entered into by parties, just policy schedule is supplied but its terms and conditions are not provided to insured. It is legal obligation of Insurer to provide the policy and terms and conditions to the Insured. In case OP/Insurer does not provide such terms and conditions of policy with the policy then the OP/insurer does so at its risks. Moreover, there is also settled law on these issues by the following cases :-
(i) Bharat Watch Company (through its partners) vs National Insurance Co. Ltd.[Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016], it was held that in the absence of appellant being made aware of terms of exclusions, it is not open to the insurer to rely upon exclusionary clauses.
(ii) Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
(iii) Jacob Punnen and anr Vs United India Insurance Co Ltd (Civil Appeal no.6778/2013 dod 09.12.2022 SC), the precedent Biman Krishna Bose case (supra) was referred and held that Insurer is duty bound to inform the policy holder about the limitation of policy issued. It was also held that on renewal of policy, insurer is duty bound to inform about change of limitations on its liability that being introduced.
10.4 In view of the above, it stand crystal clear and stand established by the circumstances that OP had not provided terms and conditions of the policy to the complainant nor the terms and conditions are proved by OP pertaining to the period when complainant was issued the insurance policy in the beginning and getting it renewed from time to time. The OP also could not establish that those terms and conditions were provided to the complainant on the eve of renewal of policy. The clause nos. 3.25 and 4.2.1 have not been proved for want of proof of the terms and conditions of policy nor the same can be invoked by OP since it was part of insurance contract has not been proved.
11.1 After considering all such materials, the following further conclusions are drawn:-
(i) Since the OP had not provided terms and conditions to the complainant nor there is any proof by the OP that the parties had entered into insurance contract for those clause 3.25 and exclusion clause 4.2.1 nor the same were agreed between them to be binding for insurance cover and settlement of the claim.
(b) The complainant has filed the mediclaim insurance scheduled made available to him by the OP. The OP has not filed any document either with the written statement or otherwise, there is no terms and conditions of policy filed or proved by the OP. To say, the written statement reproduces clause 4.21 and clause 3.25 of insurance policy but the insurance policy or its terms and conditions have not been proved by the OP.
(c) The insurance policy is a contract of insurance. The subject insurance policy schedule appears to be a complete document supplied to the complainant by the OP, it is not appended with further terms and conditions of policy nor there is any contents in the said scheduled under clause 3.25 or exclusion clause 4.21.
(d) The complainant has proved medical record inclusive of discharge summary and the OP is deriving reasons for repudiation of the claim from the contents of discharge summary to the extent that insured-patient Ms. Anjana Jain was chewer of pan or pan masala. This discharge summary is of hospitalisation from 13.04.2015 to 26.4.2015.
The complainant has also proved other medical record of AIIMS of 29.7.2015, whereby Dr. Alok Thakkar has declared that patients illness cannot be solely attributed to the use of this substance alone. There is no counter or contrary evidence on behalf of OP to the material observation or opinion mentioned in examination dated 29.07.2015.
Further, there is no record or medical record proved on behalf of complainant that the patient was abusing drug or other substance or consuming the pan/pan masala amounts to abuse of drug or intoxication.
(e) There is no dispute of hospitalization of insured/patient as well as the amount of medical bills and expenses incurred by the complainant, since the dispute is of applicability of clause 3.25 and exclusion clause 4.21 but in view of above, the exclusion clause or other clause cannot be read or invoked in the situation of this complaint.
(f) The complainant had proved medical record and bills for the treatment of his wife in the phase of hospitalisation and subsequently. When the claim was lodged with the insurance Ombudsman, the complainant had applied for reimbursement of medical expenses of Rs. 1,73,665/-(page no. 118) for treatment and expenses during that phase. Therefore, his claim is covered under the policy
However, the sum insured is Rs. 1 lakh the insured-patient , complainant is entitled for amount not exceeding the sum insured despite spending more, without prejudice to entitlement of the cumulative bonus of Rs. 40,000/- in respect of insured-patient..
11.2. So, it stand established that complainant’s wife was advised admission for treatment and she was hospitalized. The claim was lodged with all original papers but valid claim was repudiated by OP as ‘no claim’. The contents of letter is of repudiation of claim but its conclusion is stated as 'no claim'. The letter dated 04.08.2015 in its letter and spirit decline the claim by way of repudiation, which was in respect of hospitalizattion from 13.04.2015 to 26.04.2015 and other medical expenses.
This is deficiency in services on the part of OP. The OP could not prove its case and stand. Therefore, the complainant is held entitled for reimbursement of paid medical bill amount to the extent of sum insured of Rs.1,00,000/- besides agreed cumulative bonus of Rs,40,000/-qua insured-patient.
11.3 The complainant also claims interest @ 12% pa and other appropriate relief. Since he had parted with money from his pocket to clear medical bills for treatment of his wife and it also remained unpaid for want of settlement of claim. But there is no agreed rate of interest between the parties. It is appropriate to award reasonable interest, therefore, interest @ 5% per annum is allowed [on amount of Rs.1,00,00] from the date of complaint till realisation of amount in favour of complaint and against OP.
11.4 The complainant claims compensation of Rs. 20,000/- on account of harassment and agony. It is apparent that OP has not settled the valid claim within the normal course under the policy, instead invoked two clauses of policy, which was never revealed to policy holder nor agreed so. The circumstances are speaking themselves of avoiding obligation by OP under the policy but it caused harassment to complaint, these aspects are suggesting that complainant deserves compensation. The compensation ought to be consonance with the situation in lieu of harassment, un-certainty, inconvenience, agony. Therefore, claimed compensation of Rs.20.000/-, being reasonable to situation, is allowed in favour of complainant and against OP.
11.5 The complainant also claims cost of Rs.10,000/- besides other relief. Since, complainant has to file the complaint to seek reimbursement of balance amount of valid claim after exhausting all efforts, had it been processed, settled and paid, he need not to file complaint. Hence, costs of Rs.10,000/- as claimed is allowed in favour of complaint and against OP to the situation of this case.
12. Accordingly, the complaint is allowed in favour of complainant and against the OP to reimburse medical bills/expenses amount to the extent of sum insured of Rs.1,00,000/- along-with simple interest @ 5%pa from the date of complaint till realization of amount; apart from cumulative bonus of Rs.40,000/-; compensation of Rs.20,000/- and costs of Rs.10,000/- to complainant. The OP will pay the amount within 45 days from date of this order, failing which the OP will be liable to pay enhanced interest at the rate of 7% per annum on amount of Rs.1,00,000/-. The OP may deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant.
13. Announced on this 08th day of August 2024 [श्र!वण 17, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
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