Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.127 /07.07.2018
Sumit Gauba son of Shri Sunil Gauba
House no. 4, First Floor, Savita Vihar
Near Sai Baba Temple, Delhi -110092 …Complainant
Versus
OP. National Insurance Company Ltd
Division-V Hemkunt Tower,
Rajendra Place, New Dehli-110008. ...Opposite Party
Date of filing: 07.07.2018
Coram: Date of Order: 06.08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no. 28)
- (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 claim and the OP repudiated the claim by invoking exclusion clause 4.9 despite it was not part and partial of insurance policy issued and supplied to the complainant. The complainant had spent amount of Rs.6,04,687/- more than sum insured but he is confining claim of Rs. 5 lakhs to the extent of sum insured and bonus of Rs. 70,500/- alongwith interest, compensation of Rs. 1 lakh and cost of litigation of Rs. 25,000/-
- 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 bariatric surgery undergone by the complainant is not covered under the policy, it is specifically in the exclusion clause of 4.9 and that is why the claim was properly repudiated. The complainant is not maintainable.
2.1. (Case of complainant) - The complainant has been subscribing medi-claim/insurance policy from OP since the year 2006 and getting it renewed from time to time. The last policy bearing no. 360200501810000462 effective from 20.04.2018 till 19.04.2019 was issued/renewed against payment of premium to cover the complainant and his family members, the policy covers the risk of hospitalization upon disease or accident. The policy was being renewed regularly without any fault. The complainant earned cumulative bonus of Rs. 1,02,500/- in the latest policy of year 2018-19, which also applies to his wife and daughter.
However, in 2016 the complainant had encountered road accident, he received serious injuries and he was hospitalized. During that year, the complainant had taken claim under his medi-claim policy from the OP to meet expenses of his treatment. Moreover, he was treated with ORIF method to repair the multiple fractures metal plates, roads and screw fitted for joining the broken bones. While following the treatment of road accident and the factors associated with such treatments, the complainant started gaining weight, despite frugal diet and regiment of exercise & fitness program. The complainant gained weight to 145 kg.
2.2. The excessive weight of complainant started giving adverse effect on his body, the doctors advised that heavy weight has a serious dangerous to his effective metal plate, roads and screw fitted into his body during treatment of road accident. The doctors also advised/cautioned that complainant runs serious risk of breaking of hip joint bone due to heavy body weight gains, in such eventually he would be required to undergo surgery to change the wall as a remedial measure. The possibility of fracture of hip joint, requiring change of hip joint wall became probability because of rising weight of the complainant, which was due to medicine, drugs and treatment received after road accident.
2.3 Thus, the complainant was advised by the doctor, as a viable alternative, to undergo bariatric surgery which will lower his weight from the present danger level to a medically acceptable level vis-à-vis weight on the metal plate inside the body will decrease and it will eliminate further pobability of accidental fracture especially of the hip area.
The complainant, by following that medical advice, had undergone bariatric surgery (at Apollo Institute of Bariatric and Metabolic Surgery) to reduce the weight to cope with all kind of apprehensions and to prevent eventful episode, consequently his weight came down from 145 kg to 85 kg, the same are considered as a medical acceptable in respect of plates, screws and nuts in his body. The complainant spent an amount of Rs. 6,04,687/- on the said surgery, that amount was claimed by lodging the claim with OP, by furnishing discharges summary, medical record, bills, cash memos etc for processing the claim. However, the OP vide letter dated 15.05.2018 rejected the claim by invoking exclusion clause 4.9 by stating that " National Mediclaim policy does not cover the expenses for the treatment for obesity or conditions arising there from (including morbid obesity) vide exclusion clause 4.9 and the claim is not admissible".
2.4 The insurance policy covers the claim but the same was repudiated without any plausible justification and the exclusion clause was wrongly invoked vis-à-vis the complainant had gained weight on the treatment of accident, the subject surgery was required and it was necessary. The policy originally issued to the complainant did not contain any exclusion clause in respect of bariatric surgery, otherwise the bariatric surgery was not undertaken for cosmetic or beauty reason; the surgery was undertaken for preventing another accident, which if were occur, it would have to be paid under the policy by the OP. The rejection of claim by OP is illegal and contrary of contract of insurance. This rejection of claim is a deficiency of services actionable under the Consumer Protection Act. That is why the complaint u/s 12 of the Consumer Protection Act 1986.
2.5 The complaint is accompanied with insurance policy of period from 20.04.2017 to 19.04.2018 besides other insurance policy from 16.04.2004 to 15.04.2005 onwards regularly/yearly upto 20.05.2015 to 19.04.2016 and personal accidental insurance cover; letters exchanged between the parties, discharge summary (13.11.2017 to 15.11.2017) issued by Apollo Institute of Bariatric and Metabolic Surgery, bill dated 15.11.2017 of Rs.5,37,662/- besides other invoices and bills from 15.11.2017 to 05.12.2017, repudiation letter dated 15.05.2018 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 claim was rejected properly. The OP is not liable to make any payment in respect of expenses incurred in connection with or in respect of treatment of obesity or condition arising there from (including morbid obesity).
3.2. The complainant has history of gradual weight gain on 13.11.2017, he was diagnosed with morbid obesity for which he had undergone surgery at Apollo Institute of Bariatric and Metabolic Surgery. The written statement reproduces clause 4.9 of the medi-claim policy to fortify that since subject treatment has been specifically excluded from the purview of risk/treatment, therefore, the OP is not liable to pay any amount. The clause 4.9 is also to be read with another clause 5.2 (condition precedent to admission of liability) which has also been reproduced in the written statement. In addition, there is free look period of 15 days under clause 5.22, which was not exercised by the complainant. The repudiation letter dated 15.05.2018 is just, reasonable, fair and legal.
3.3 The OP also denies other allegations of the complaint that he failed to substantiate as to how the gaining of weight was consequent to following the treatment of road accident, there is no medical papers to support the same. The OP denies that complainant had spent an amount of Rs. 6,04,687/- on the surgery and treatment to reduce his weight. The claim is not maintainable for want of medical record or papers to support the case of complainant. The complaint is liable to be dismissed.
3.4 The written statement is accompanied with letter dated 15.05.2018 issued by TPA, National mediclaim policy terms and conditions (version 07/20214) being paper book on legal size paper.
4. (Replication of complainant) –The complainant filed detailed rejoinder to the written statement of OP, while denying all allegations of written statement but reaffirming the complaint as correct. The complainant had undergone bariatric surgery as per medical advises and need, he had spent the amount on such surgery against bills filed. He is entitled for the admissible amount covered under the policy.
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, AO (Legal) of OP, the affidavit is replica of the written statement, while reproducing the clause 4.9, 5.2 and 5.22.
6.1 (Final hearing)- The complainant and the OP have filed their respective written arguments by referring case laws/citation.
6.2. The parties were also given opportunity to make oral submission, then Shri Amit Kumar, Advocate for complainant made oral submissions. But, no oral submissions were made on behalf of OP despite opportunities. However, the written arguments of OP will also be considered. The complainant has fortified its contentions while relying upon the following cases:-
(a) Biman Krishna Bose Vs. United India Assurance Co. Ltd. [(2001) 6 SCC 477]-A renewal of health policy means repetition of the original policy on identical terms but from different date from its expiration comes into force.
(b) 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.
7.1 (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.
7.2.1 There are rival plea on the point of terms and conditions of the policy, the OP invokes the terms and conditions filed with the written statement but complainant denies of supply of those or any other terms and conditions with the policy. The OP refers terms and conditions and its exclusion clauses 4.9 to show that because of these terms and conditions the claim was not admissible. The complainant could have easily accessed the terms and conditions of the policy on the website of insurance company, since the same are available in public domain. The complainant is aware or deemed to the aware of those terms and conditions, he is bound by them.
On the other side the complainant refers original policy and renewed policy filed with the complaint. The insurance policy were issued to complainant under names "Hospitalisation and Domiciliary Hospitalisation Benefit Policy", ' Hospitalisation Benefit Policy" but lastly Insurance schedule under the name 'National mediclaim Policy'. The policy issued were in two pages, it bears page numbers at its bottom. None of those terms and conditions are mentioned on the face of insurance policy or policy schedule nor they bear the exclusion clause 4.9.
Further, the terms and conditions filed with the written statement were not provided to the complainant at any point of time of original policy issued or renewal of the policy, then how it could be forced to be binding on the complainant?. Lastly, there was no reason to access the website of insurance company since policy as filed was provided to complainant, otherwise the additional information, if any, ought to be provided to the complainant, but it was not provided. The OP cannot deny or refuse valid claim of the complainant.
7.2.2. The submissions of the parties are assessed, in view of the material on record. The contention of the parties recorded in sub- paragraph 7.2.1 above is in fact based on material and documents on record filed by the parties. To say, the terms and conditions filed by the OP of the insurance policy (or lastly schedule) issued from the inception were not accompanied with separate terms and conditions of the policy. In fact, certificate appended in the policy or policy schedule gives a clear impression to the insured that the insurance policy or policy schedule are complete document in itself, without further attachments. The policy or schedule bears page numbers, from where it begins and where it ends, the terms and conditions are not within that two number of pages. Moreover, the insurance policy or schedule issued are on A4 size page but the terms and conditions filed with the written statement [version 07/2014] are of legal size. The complainant had rightly pointed out that these terms and conditions (of version 07/2014) are not of year 2006 when the policy was issued at the inception beside clause 5.23 of IRDA Regulation (at page 23) mentions about Regulation of 2013, which proves that these terms and conditions came into existence in 2014, which were not supplied to the complainant when policy was initially taken and then renewed subsequently on same pattern. There is no roof by OP of separate terms and conditions provided to the complainant at any point of time.
7.2.3 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 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 to be complied with. It would not escape the insurance company just by saying that the website of insurance company could be accessed, it is neither the law nor the insurance company can take shelter under the garb of maintaining website. 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 physically the terms and conditions with policy? It is also not reasonable and justifiable that insurance is being entered into the parties, but its terms and conditions are to be accessed separately on website of company. Each person may not be equipped with electronic gadgets or inter-net connections or upto date with the technology. 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, the Bharat Watch Company case (supra) applies besides the following cases :-
(i) 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".
(ii) Jacob Punnen and anr Vs United India Insurance Co Ltd (Civil Appeal no.6778/2013), 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.
7.2.4 In view of the above, it stand crystal clear and established by the circumstances that OP had not provided terms and conditions of the policy to the complainant nor the terms and conditions filed by OP are 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 case law presented on behalf of the complainant also apply to the situation in hand, besides other cases referred above. The exclusion clause no. 4.9 cannot be invoked by OP for want of proof of agreement on this point or it was condition of insurance policy.
8.1 After taking into account stock of all such materials, the following conclusions are drawn:-
(a) 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 which clause 4.9 were agreed upon between them to be binding for insurance cover and settlement of the claim.
(b) 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 exclusion clause 4.9 but in view of sub-clause (a) above, the exclusion clause cannot be invoked in the situation of this complaint. The National medi-claim policy/Annexure R2 to the written statement is version of 07/2014, it is suffice in itself that these terms and conditions were not issued to the complainant when policy was taken initially vis-à-vis there is also no record that these terms and conditions were supplied to the complainant at the time of renewal.
(c) Ld. Counsel for OP has pointed out that in the National medi-claim policy, it clearly mentions that the insured may visit the website of OP, however, it would not help the OP on three reasons namely (i) the National medi-claim policy schedule mentions that is attached with the policy and clauses, however, it has not been proved that policy and clauses were attached with the schedule, (ii) otherwise, it is contradictory that policy and clauses are attached with the policy scheduled as well as it is available on the website and (iii) it is not a case of obtaining the online policy, the things would have been different had it been a case of obtaining insurance policy online, which is mentioned on the face of National medi-claim policy terms and conditions to buy online policy at specified ID http://nic.online.in (version 07/2014) .
(d) The complainant had proved medical bills for the treatment Rs. 6,04,687/-. Since the terms and conditions of policy containing clause 4.9 was not entered/provided to the complainant, therefore, his claim is covered under the policy and exclusion clause 4.9 cannot be invoked.
However, the sum insured is Rs. 5 lakhs, the complainant is entitled for amount not exceeding not sum insured, without prejudice to entitlement of the cumulative bonus of Rs. 77,500/-.
8.2. In view of above conclusions, it stand established that complainant was advised admission for treatment and he was hospitalized. The claim was lodged with all original papers but valid claim was repudiated by OP. There 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.5,00,000/-, which was spent during the currency of policy besides cumulative bonus of Rs,77500/-.
8.3 The complainant also claimed interest @ 12% pa and other appropriate relief. Since he had parted with money from his pocket to clear medical bills for his treatment and it also remained unpaid for want of settlement of claim. There is no agreed rate of interest between the parties. It is appropriate to allow reasonable interest, therefore, interest @ 5% per annum is allowed [on amount of Rs.5,00,00] from the date of complaint till realisation of amount in favour of complaint and against OP.
9.1 The complainant claims compensation of Rs. 1,00,000/- 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 exclusion clause, which was never revealed to him. The circumstances are speaking themselves of avoiding obligation 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, compensation of Rs.50.000/- is quantified and awarded in favour of complainant and against OP.
9.2 The complainant also claims cost of Rs.25,000/- 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.25,000/- is allowed in favour of complaint and against OP to the situation of this case.
9.3 So, 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.5,00,000/- along-with simple interest @ 5%pa from the date of complaint till realization of amount; apart from cumulative bonus of Rs.77,500/-; compensation of Rs.50,000/- and costs of Rs.25,000/- 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.5,00,000/-. The OP may deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant.
10. Announced on this 06th day of August 2024 [श्र!वण 15, 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.
[ijs102]
