Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-337/2019
Sh. Rajesh Kumar s/o Sh. Manohar lal
r/o A-83, Ground Floor, Inderpuri, Delhi-110012 …Complainant
Versus
National Insurance Company Ltd.
7E, 3rd Floor, Deendayal Upadhyay Bhawan,
Jhandewalan Extension, Swami Ram Tirith Nagar,
New Delhi-110055 ...Opposite Party
Date of filing: 23.12.2019
Date of Order: 24.06.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to case of parties) – Succinctly, the dispute is that complainant was hospitalized, he was diagnosed and then surgery in eye twice, discharge summary was also issued and the complainant had spent Rs. 73,335/- on his treatment, which was not reimbursed by the insurer/ OP; his claim was repudiated on the ground of clause 4.1 of insurance policy of tenure of pre-existing disease. The complainant protested it that terms and conditions of policy were never provided to the complainant, he is entitled for reimbursement of amount spent on treatment and other relief.
1.2. Whereas, the OP justifies its stand that the claim was rightly repudiated since it is comes in the exclusion clause 4.1 of terms and conditions of the policy.
2.1. (Case of complainant) - Complainant Rajesh Kumar has been taking medi-claim since 2016 till 2019, it was got renewed regularly. The policy issued was bearing no. 35020150180002518 from 29.08.2018 to 28.08.2019, which covers the complainant and his wife for sum insured of Rs. 2,00,000/-; the policy was issued against consideration of premium of Rs. 9,318/-.
2.2. The complainant was feeling problem in his left eye for blurring of vision on 22.06.2019, he was admitted in Delhi Eye Care Hospital and various tests were performed, he was diagnosed/surgery as left eye: unstable PDR s/p SHH with vitreous hemorrhage on 25.06.2019 for which discharge summary was issued by the hospital. He was again admitted in Delhi Eye Care Hospital on 29.06.2019 for surgery as per discharge summary of hospital. He spent amount of Rs. 73,335/- on his treatment.
The OP was immediately informed about the admissions of complainant in the hospital as well as through the hospital, OP was also requested to register the claim and authorized the hospital for the claim expenses, but OP did not give any cashless facility. Thus, complainant filed claim form completed in all respect, along with admission and discharge summary, medical bills of hospital including testing reports in original were submitted to the OP, however, OP refused complainant’s claim vide email dated 03.10.2019 under the plea of pre-existing clauses of policy, whereas no such clauses were ever since supplied or explained to the complainant with the policy or at the time of granting cover. Para 6 of the complaint are general grievances as well as reminder to the OP as what ought to have been done by the OP with regard to terms and conditions of the policy, when policy is taken by the insured.
For want of settlement of genuine claim of the complainant, it amounts to deficiency of services on the part of OP, since OP is knowing well that complainant is having medi-claim policy since 2016, without any break and this was third year of the policy.
2.3. That is why the complaint for settlement of claim of Rs. 73,335/-, interest at the rate of 12% on that amount apart from compensation of Rs. 1,00,000/- on account of mental agony, pains and sufferings apart from cost and other miscellaneous expenses of Rs. 50,000/-.
The complaint is accompanying with copies of policies of insurance from the period 2016-2017, 2017-2018 and 2018-2019 (each policy is one sheet policy), clinical notes issued by Delhi Eye Care, discharge summary of 25.06.2019, discharge summary of 29.06.2019, invoices and bills, letter by Delhi Eye Care to TPA about typographical error in recording the history of diabetic in clinical notes of 23.6.2019 (for 02 years, it was typed 26 years), email and aadhar card of complainant.
3.1 (Case of OP)- The complaint is opposed by OP that the complaint is without cause of action, the complainant came without clean hands by suppressing material facts.
The TPA on the panel of OP1 considered the documents furnished by complainant including discharge summary, the claim of complainant was found inadmissible as per clause 4.1 of terms and conditions of insurance policy, since policy is in the third running year and complainant was diagnosed of unstable proliferative diabetic retinopathy with SHH with vitreous hemorrhage, diabetic being pre-existing its complications in not cover under policy clause 4.1, which is a general standard exclusion clause in the medi-claim policy. The claim was rightly repudiated within the parameter of insurance contract. The OP confirms that email dated 03.10.2019 was sent to the complainant.
3.2. The OP denies plea of complainant about terms and conditions that terms and conditions of insurance policy were not provided to the complainant and even the same are available online on the site of IRDA. The complainant’s complaint and claim are false. The reply is accompanying with terms and conditions, recommendations for repudiation by TPA and repudiation letter dated 25.09.2019.
4. (Replication of complainant) – The complainant filed detailed rejoinder and opposed the allegations of OP in respect of terms and conditions of the policy. The conditions quoted by the OP does not form part of contract nor the same were explained or supplied to the complainant at the time of taking policy or getting renewed the policy, therefore, the same are not applicable, hence OP cannot take shelter of those clauses. Moreover, the OP had not filed terms and conditions along-with written statement nor the same were furnished to the complainant till date. Whereas, it was the duty of OP to furnish terms and conditions and also supply them to the complainant at the time of insurance of policy. Such commission or omission are deficiency in services on the part of OP, as OP is playing game of hide and seek in this regard. The complainant confirms the complaint as correct.
5.1. (Evidence)- Complainant Rajesh Kumar filed his affidavit in detail and documentary record have been made part of evidence.
5.2. On the other side, OP filed affidavit of Krishma R Negi, Administrative Officer, and it is compact affidavit, based on written statement especially reproduction of para 3 of preliminary objections no. 3, being plea of exclusion clause of 4.1 of policy.
6. (Final hearing)- The complainant and the OP have filed their respective written arguments. The parties were given opportunity to make oral submission, therefore, Sh. Lokesh Kumar Rai, Advocate for complainant availed the opportunity Ld. Counsel for complainant has referred ICICI Prudential Life Insurance Co. vs Veena Sharma & Anr IV(2014) CPJ 580 (NC), wherein it was held that insurance company is required to prove with credible evidence that complainant was suffering from pre-existing disease and mere production of discharge card will not be enough. Further reliance is also placed on Bharat Watch Company through its partners vs National Insurance Co. Ltd., Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016 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. However, on the other side Sh. V.K. Gupta, Advocate for OP communicated through his associate Ms. Laxmi Sagar, Advocate that written arguments filed are suffice in themselves for the oral arguments of OP.
7.1 (Findings)- The rival contentions of both the sides are considered keeping in view the material on record in the form of oral evidence and documentary record.
At the outset, there is no dispute either of tenure of policy, the episode of admissions of complainant twice in Delhi Eye Centre and his treatment there, the amount of bills raised etc. The issue is regarding whether or not entitlement of complainant for reimbursement of the bills vis-à-vis applicability of exclusion clause 4.1 of insurance policy.
7.2. The complainant has proved his previous policies of the year 2016-2017, 2017-2018 and 2018-2019. All the policy/ cover filed are on single sheet. The policy of 2018-2019 at its bottom mentions, a phrase ‘pre-existing disease exclusion’ for both members and no other terms and conditions are mentioned on the policy cover. The OP had filed National Parivar Mediclaim Policy/ terms and conditions (18 pages) and nowhere in the policy cover filed by complainant there is any reference that such terms and conditions or 18 pages are enclosed with the policy.
7.3. OP has also stand that complainant may obtain terms and conditions of policy by requesting the company or by visiting online web-site but the complainant cannot take shelter of ignorance to the terms and conditions of the policy.
However, it would not fulfill vacuum in contract entered, like to issue insurance policy first but fot remaining things are to be ascertained by visiting the office or web-site or otherwise to request for insurance policy terms and conditions. When terms and conditions are settled, then policy contract is entered, which happens by furnishing proposal form and its acceptance with insurance premium. The Insurer is also bound to disclose all terms and conditions insurance to the insured. The ratio of Bharat Watch Company case applies to the situation in hand.
Moreover, in 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".
7.4. Thus, the complainant has established that he was not made aware by OP about the terms and condition of policy at any point of time either at the time of proposal form or at the inception of first insurance policy cover or at any subsequent stage till subject renewed policy of 2017-18 and even complainant has grievances that copy of written statement was supplied but the terms and conditions of policy were not provided. When the terms and conditions are not made known to complainant, then how it can be construed that parties have agreed upon it or to act upon them. It is also deficiency of service as well as unfair trade practice on the part of OP by not providing complete insurance policy with terms and conditions. The complainant cannot be bound for what he was not agreed or made him known of the terms and conditions to be agreed or acted upon. On the other side OP could not establish that it had served the policy with terms and condition of policy.
Consequently, the complainant has established his case of deficiency of service as well as unfair trade practice against OP as on the face of record it is manifest that the claim was wrongly assessed despite clear unilateral terms and conditions available with OP, which the complainant was deprived to assess them. Therefore, it is held that complainant is entitled for reimbursement of remaining amount of Rs.73,335/- in respect of hospitalization/medical expenses.
7.5. The complainant had paid the amount from his pocket, had it been reimbursed, he would not have been deprived of his money. In addition, there is no concrete evidence of rate of interest of 12% pa as claimed by complainant but it would serve both ends if interest at the rate of 7 % pa is determined. Accordingly, interest at the rate of 7% pa from the date of complaint till realization of the amount is determined in favour of complainant and against the OP.
7.6. The complainant seek compensation of Rs.1,00,000/- on account of mental agony and other trauma suffered. By taking into account all the circumstances, especially the relief of reimbursement of hospitalisation/medical expenses are allowed, the complainant is also held entitled for compensation since he had to pursue a lot. He was also not provided terms and conditions of policy. Therefore, damages/ compensation of Rs. 25,000/- is allowed in his favour and against the OP. Cost of Rs. 10,000/- are also allowed in his favour.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP, while directing OP to pay bills amount of Rs. 73,335/- along-with interest @7% pa from the date of complaint till realisation of amount, damages/compensation of Rs.25,000/- apart from costs of Rs. 10,000/-. OP is also directed to pay the amount within 30 days from the date of receipt of this order.
In case amount is not paid within 30 days from the date of receipt of order, the OP will be liable to pay interest at the rate of 9% per annum on amount of Rs. 73,335/- from the date of filing of complaint till its realization.
9. Announced on this 24th June 2023 [आषाढ़ 3, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
